j 


I3n£,e. 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 


THE    LAW    OF   ELECTRICITY. 


A  TREATISE 


ON  THE 


RULES  OF  LAW 


RELATING   TO 


TELEGRAPHS,  TELEPHONES, 


Electric    Lights,    Electric    Railways,    and    Other 
Electric   Appliances. 


BY  SEYMOUR  D.  THOMPSON,  LL.D. 


ST.  LOUIS,  MO. : 

CENTRAL  LAW  JOURNAL  COMPANY, 

LAW   PUBLISHERS  AND  PUBLISHERS   OK  THE 

CENTRAL  LAW  JOURNAL. 

1891. 


Copyright,  1891, 

BY 

Seymour  D.  Thompson. 


T 


St,  Lotas,  Mo.:    Printed  by  Central  Law  Journal  Company. 


V 


TO  THE 

HON.  GEORGE  W.  STONE,  LL.D., 

CHIEF   JUSTICE   OF   THE    STATE    OF   ALABAMA, 

THIS  WORK  IS  INSCRIBED  BY  THE  AUTHOR,  AS   A   TRIBUTE   TO  HIS 

EMINENT  JUDICIAL  SERVICES,  EXTENDING  OVER  A  PERIOD  OF 

MORE   THAN    FORTY  YEARS:   AS  A    TESTIMONIAL    OF    THE 

ESTEEM  IN  WHICH  HE  IS  HELD  BY  THE  BAR  OF  OUR 

COUNTRY :   AND  ALSO   IN   RECOGNITION  OF  THE 

HIGH    CHARACTER,    PAST    AND    PRESENT, 

OF  THE    COURT    OVER    WHICH 

HE     PRESIDES. 


74- 


PREFACE. 

This  is  an  attempt  to  state  and  classify  the  ad- 
judged law  applicable  to  Telegraphs,  Telephones, 
Electric  Lights,  Electric  Railways,  and  other  Elec- 
trical Appliances.  The  subject  is  a  rapidly  growing 
one.  The  decisions  are  multiplying  with  such 
rapidity  that  they  have  almost  outrun  the  diligence 
of  the  author.  The  author  acknowledges  the  as- 
sistance of  Professor  James  A.  Yantis,  of  the  Law 
Department  of  the  University  of  Missouri,  who 
made  a  critical  examination  of  a  portion  of  his 
manuscript,  and  made  valuable  suggestions  as  to 
alterations  and  additions. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 


RIGHTS    OF    TELEGRAPH    COMPANIES. 


SECTION. 

1.  As   instrnments  of  interstate   commerce, 

2.  Provisions  of  the  revised  statutes  of  the  United  States, 

3.  Validity  and  effect  of  this  statute  in  general, 

4.  Effect  of   this  statute  in  exempting   telegraph  companie 

from  State  taxation  and  control, 

5.  Invalidity  of  State  statute  prescribing  priorities  of  interstate 

messages,      ..... 

6.  Limit  of  State  power  of  taxation;   property  taxable — in 

terstate  business  not, 

7.  License  tax  for  the  privilege  of  doing  business, 
S.    No  exclusive  privilege  of  establishing  line, 

9.    State  grant  of  exclusive  privilege  to  a  particular  company 

10.  Exclusive  privileges  under  United  States  patents, 

11.  Right  to  extend  line  upon  interstate  bridge  over  navigable 

waters,  ..... 

12.  Not  allowed  to  interfere  with  the  opening  of  the  draw-span 

13.  Statutory  protection  of  poles  and  wires,    . 

14.  Damages  for  cutting  such  wires, 

CHAPTER  II. 


PAGE. 
1 
3 

6 


9 
10 
11 
12 

12 
13 
14 
15 


RIGHT    TO    COMPENSATION    FOR    THE    USE    OF    LAND    BY    TELE- 
GRAPH   AND    OTHER  ELECTRICAL  COMPANIES. 


SECTION. 

17.  Land  may  be  condemned  for,       . 

18.  Whether  telegraph  lines  upon  highways  an  additional  serv- 

itude, ...... 

19.  How  as  to  lines  constructed  on  railroad  company's  right  of 

way,  ...... 

20.  Right  of  railway  company  to  compensation  from  telegraph 

company  in  such  cases,  .  .  .  . 

21.  Construction  of  a  statute  as  to  the  power  to  pass  under  a 

railroad,        ...... 

22.  Additional  burdens  on  the  fee  by  electrical  companies, 


PAGE. 

18 

19 

22 

22 

23 
24 


Vlll 


TABLE    OF    CONTEXTS. 


23.  Requisites  of  the  petition  to  condemn, 

24.  Release  of  damages  by  acquiescence, 

CHAPTER  III. 


24 
26 


USE  OF  STREETS  AND  HIGHWAYS  BY  THESE  COMPANIES. 

Article  I. — Judicial  Decisions. 

SECTION.  PAGE 

26.  Power  of  municipal   corporation  to  grant  use  of  streets  to 

electric  railways,         .... 

27.  Injunctions  against  such  use  by  abutting  property-owners 

28.  When  telegraph  poles  in  streets  a  public  nuisance, 

29.  Liability  of  municipal  corporation  for  allowing  telegraph 

poles  to  be  erected  in  its  streets, 

30.  Power  of  city  to  designate  the  streets  to  be  occupied, 

31.  Power  of  city  to  remove, 

32.  Constitutionality  of  statutes  requiring  wires  to  be  put  under 

ground,         ..... 

33.  Right  of  telephone  companies  to  erect  poles  in  the  streets 

of  cities,        ..... 

34.  Rights  of  abutting  property-owners, 

35.  Invading  private  property— cutting  trees, 

36.  Revocation  of  license  by  municipal  corporation,     . 

37.  Struggles  by  these  companies  for  the  exclusive  use  of  the 

streets,  ..... 

3S.     Continued  :     Plaintiff,  an  electric  light  company,  organized 
by  a  gas-light  company, 

39.  Question  as  depending  upon  priority  of  occupancy, 

40.  Charter  power  of  control  does  not  extend  to  the  granting  of 

exclusive  privileges, 

41.  Who  may  question  electric  light  privilege  granted  by  mu 

nicipal  corporation, 

42.  Charter  power  to  authorize  the  use  of  electricity  as  a  motive 

power  for  street  railways, 

43.  Injunction  by  telephone  company  against  electric  railway 

company,      . 

44.  Continued:     Where  both  companies  use  the  earth  for  a  re 

turn  circuit,  .... 

45.  Further  observations  on  this  subject, 

46.  Tax  for  the  privilege  of  using  city  streets, 

47.  Reasonableness  of  license  fee  for  use  of  streets, 

48.  Municipal  control  as  to  the  mode  of  suspending  or  laying 

telegraph  wires, 

49.  Futility  of  attempts  at  statutory  regulation, 

50.  Dangers  to  be  provided  against  by  such  regulations, 

51.  Nfew  York  board  of  electrical  control, 

52.  Mandamus  to  compel  city  to  designate  places  for  erecting 

electric  light  poles,     . 


29 

30 
32 

34 

39 
40 

41 

42 
43 
45 
46 

47 

4S 
49 

50 

51 

51 

52 

54 
56 
5S 
59 

60 
61 
63 
71 

72 


TABLE    OF    CONTENTS.  IX 

53.  Power  of  a  municipal  corporation  to  own  an  electric  light 

plant,  .  .  .  '   •  .72 

Article  II. — Statutes. 

SECTION.  PAGE. 

54.  Recent  statutes  regulating  electrical  companies,     .  .        74 

55.  Statutes  authorizing  the  laying  of  such  wires  under  ground.        75 

56.  Statutes  committing  the  subject  to  the  regulation  of  munici- 

pal corporations,        .  .  .  .  .76 

57.  Statutes  and  municipal  regulations  authorizing  the  string- 

ing of  wires  on  existing  poles,  .  .  .S3 

58.  Statutes  restraining  invasions  of  private  property,  .        S7 

59.  Statutes  authorizing  the  use  of  roads  and  streets  by  tele- 

graph and  telephone  companies,  .  .  .89 

CHAPTER  IV. 

NEGLIGENT  INJURIES  BY  AND   TO  THESE  COMPANIES. 

Article  I. — General  Views. 

SECTION.  PAGE. 

63.  General  views  of  the  liability  of  private  corporations  own- 

ing public  works,        .  .  .  .  .95 

64.  Theories  on  which  electrical  companies  liable  for  negligence,        99 

65.  Whether  a  quasi  insurer :     Collecting  dangerous  agencies 

on  one's  own  land,     .....  100 

66.  Reasonable  care  is  proportionate  to  danger  of  mischief,       .  102 

67.  How  far  liability  rests  on  the  principle  of  trespass,                .  102 
6S.     Under  the  civil  code  of  Louisiana,              .                .                .  104 

69.  Non-liability  of  postmaster-general  operating  postal  tele- 

graph, ......      105 

Article  II. — Injuries  in  the  use  of  Streets,  Highways 
and  Navigations. 

SECTION.  PAGE. 

70.  General  proposition  in  regard  to  liability  for  negligence  in 

the  use  of  the  streets,  ....      107 

71.  License  from  the  city  no  defense,  .   ■ 

72.  Proximate  and  remote  cause, 

73.  Contributory  negligence  of  the  traveler,  . 

74.  Contributory   negligence   of   driver   not   imputable   to   the 

passenger,    ..... 

75.  Poles  erected  in  part  of  the  street  prohibited  to  travel, 

76.  Injuries  from  improper  location  of  poles, 

77.  Collision  in  consequence  of  horse  running  away,     . 

78.  Injuries  from  overhanging  wires, 

79.  Injuries  from  guy  wires, 
SO.  Poles  blown  down  by  storms, 


10S 
10S 
109 

111 
112 
113 
111 
115 
116 
116 


X 


TABLE    OF    CONTENTS. 


81.  Right   of  contribution   by   municipal    corporation    against 

electric  light  company. 

82.  Obstructing  navigation, 

83.  Vessels  injuring  submarine  cables, 
S4.  Electric  trains  frightening  horse-. 
85.     Certain  evidential  matters,  .  "  . 


117 
118 
IIS 
119 
120' 


Article  III. — Injuries  to  their  own  Employees. 


SECTION. 

89. 

90. 


PAGE. 

Injuries  to  the  company's  servants.  .  .  .      122' 

Servant  injured  through  patent  defect  not  obviously  dan- 
gerous, .  .  .  .  .  123 

91.  Injuries  through  the  contributory  negligence  of  the  servant,       124 

92.  Injuries  to   workmen   through   negligently  turning  on  the 

current,         .  .  .  .  .  .124 

93.  Injuries  to  workmen  by  reason  of  ■•live'*  wires  sagging  upon 

"dead"  wires,  .....      125 

94.  Averring  one  kind  of  negligence  and  recovering  on  another,       127 

95.  Breaking  of  elevator  of  electric  light  tower,  .  .127 

CHAPTER  V. 

THE    LAW    RELATING  TO  TELEPHONES    AND  TELEPHONE 
COMPANIES. 


SECTION. 

100.  Description  of  a  telephone, 

101.  Classed  with  telegraph  companies, 

102.  The   telephone  patents, 

103.  Mistakenly  pronounced  a  common  carrier, 

104.  A  public  agency,  and  subject  to  public  regulation, 

105.  Xo  defense  that  corporation  uses  agencies  protected  by 

United  States  patent-. 

106.  Compelled  by  mandamus  to  serve  the  public  equally, 

107.  Contract  with  parent  company  no  defense, 
10S.    Pleading  in  such  actions:  Instances  of  a  responsive  answer, 

109.  Compelled   to  furnish   equal  facilities  to  telegraph  com- 

panies, ...... 

110.  Illustrations,    ...... 

111.  A  contrary  vitw.  .  .  .  .  . 

112.  What  if  company  have  lines  extending  into  other  States, 

113.  State  regulation  of  interstate  messages  void, 

114.  State  may  regulate  price  of  service, 

115.  Powers  under  revised  statutes  of  Missouri :     Power  of  State 

to  regulate  charges,   .  .  .  .  . 

116.  City  of  St.  Louis   no  power  to  regulate  charges  for  tele- 

phone service,  . 

117.  Decisions  under  Indiana  statute, 

118.  Attempted  evasions  of  statutory  penalty, 


PAGE. 

130 
130 
131 
133 
134 

134 
135 
137 
137 

138 
138 
139 
140 
141 
142 

143 

143 
144 
145 


TABLE    OF    CONTENTS. 


XI 


119.  Regulation  against  use  of  instrument  by  rival  company,       .  145 

120.  Regulation  as  to  improper  language,        .  .  .  146 

121.  Telephonic   communication   as   evidence,  .  •  146 

122.  Admissibility  of  conversations  received  through  a  public  tel- 

ephone operator,         .....  147 

123.  "Where  the  voice  of  the  speaker  is  recognized,        .  .  147 

124.  Admissibility  of  answers  of  persons  called  up  where  voice 

not  recognized,  .....  14S 

125.  Reasons  for  holding  such  testimony  admissible,     .  .  149 

126.  Taxation  of   telephone  companies,  .  .  .  154 

127.  Taxation  of  stock  of  parent  corporation  in  local  corporation,  156 

128.  License  tax,     ......  157 

129.  Privileged  taxation  of  telegraph  companies,  .  .  158 

130.  Statutory  schemes  of  taxation,    ....  158 

CHAPTER  VI. 

GENERAL  OBLIGATIONS  OF  TELEGRAPH  COMPANIES. 
SECTION.  PAGE. 

136.  Public  nature  of   their  employment,         .  .  .  160 

137.  Not   liable   as  common  carriers,                .                .                •  161 
13S.    Reasons  for  distinguishing  their  liability  from  that  of  com- 
mon carriers,              .....  163 

139.  Remote  analogy  to  the  undertaking  of  a  common  carrier,  165 

140.  Liable  for  what  degree  of   care,  .  .  .  165 

141.  View  that  they  are  liable  for  a  high  degree  of  diligence, 

skill  and  care,  .....  166 

142.  Whether  the  requisite  degree  of  care  was  employed  is  a 

question  for  a  jury,     .....  168 

143.  Bound  to  transmit  all  lawfal  messages  tendered,     .  .  168 

144.  And  under  reasonable  regulations,  .  .  .  169 

145.  Not  bound  to  transmit  messages  in  furtherance  of  unlawful 

undertakings,  .  .  .  .  .  169 

146.  Liable  for  transmitting  forged  messages,  .  .  169 

147.  Illustration  of  the  foregoing,        ....  171 
14S.     Not   liable  for  fraud  happening  in  consequence  of  negli- 
gence of  their  agent,                  ....  .171; 

149.  Not  liable  for  cashing  fictitious  money  order,  .  .      173 

150.  Liable  for  transmitting  libelous  messages,  .  .  174 

151.  Bound  to  transmit  messages  as  written,  .  .      174 

152.  Not  liable  for  mistake  of  their  agent  in  correcting  erroneous 

message,       .  .  .  •  •  .176 

153.  Not  bound  to  transmit  oral  messages,        .  .  •      177 

CHAPTER    VII. 

STATUTORY  PENALTIES  AGAINST    TELEGRAPH    COMPANIES. 
SECTION.  PAGE. 

157.    General  obligation  to  transmit  messages  in  the  order  in 
which  they  are  received,  .... 


ISO 


Nil 


TABLE    OF    CONTENTS. 


15S.     Statutes  enforcing  this  obligation,              .                .                .  180 

159.  Indiana  statute  giving  penalty  for  bad  faith,  partiality,  or 

discrimination,           .....  1S2 

160.  Missouri  statute  giving  a  penalty,               .                .                .  1S3 

161.  Xot  liquidated  damages,  but  a  penalty,     .                .                .  186 

162.  Jury  how  instructed  as  to  statutory  obligation  to  transmit 

messages  in  the  order  in  which  they  are  received,             .  1S6 

163.  Arkansas  statute  giving  penalty,                .                .                .  188 

164.  How  far  statutes  apply  to  interstate  messages,        .                .  189 

165.  Validity  of  statute  imposing  a  penalty  where  dispatch  is 

sent  to  another  State,               ....  190 

166.  No  action  for  penalty  for  non-delivery  of  message  delivered 

to  be  sent  on  Sunday,                ....  192 

167.  Exception  where  the  dispatch  relates  to  a  work  of  necessity,  193 
16S.    Burden  of  proof  as  to  necessity,               .               .               .  194 

169.  Exception  in  cases  of  necessity  or  charity,              .  1 : »4 

170.  The  necessity  may  be  a  moral  or  social  necessity,                .  195 

171.  The  necessity  may  be  created  by  negligence,          .               .  196 

172.  Retention  of  the  money  not  a  ratification  by  the  telegraph 

company,      ......  197 

173.  No  penalty  for  refusing  to  transmit  obscene  messages,         .  197 

174.  Penalty  for  refusing  dispatches  of  competing  lines,               .  197 

175.  "When  notice  to  the  company  necessary,               .               .  19S 

176.  When  payment  of  actual  damages  no  bar  to   recovery  of 

penalty,        .               .               .               .               .               .  19S 

177:    Action  for  penalty  by  addressee,  .  .  .198 

17S.    Jurisdiction  of  such  actions :    Justices  of  the  peace,             .  199 


CHAPTER  VIII. 

STIPULATIONS  AND  REGULATIONS  LIMITING  LIABILITY.  , 


Article  I. — Validity  of  such  Stipulations  and 
Regulations. 

SECTION.  PAGE. 

183.     Cannot  limit  liability  for  gross  negligence,              .                .  201 

154.  A  comprehensive  statement  of  the  doctrine,             .                .  202 
185.     Such  regulations  must  be  reasonable,         .                .                .  203 

156.  View  that  they  can  stipulate  against  liability  except  for 

gross  negligence,  willful  misconduct  or   fraud,                .  204 

157.  Evidence  of  gross  negligence  within  this  rule,        .                .  206 

155.  Cannot  stipulate  against  liability  for  simple  negligence,       .  207 

189.  Reason  of  this  rule,        .  .  .  .  .209 

190.  Cannot  limit  liability  for  negligent  mistakes,  defective  in- 

struments, etc.,           .....  209 

191.  May  stipulate  against  liability  for  mistakes  due  to  climatic 

influences,    ......  210 

192.  Cannot  stipulate  against  statutory  penalty,              .                .  210 


TABLE    OF    CONTENTS. 


Xlll 


193.  Unreasonableness  of   condition  limiting  liability  to  the  cost 

paid  for  transmission,  ....      211 

194.  Stamping  messages,  "accepted  subject  to  delay,"  .      212 

195.  View  that  such  stipulations  do  not  exempt  from  liability  to 

the  receiver  of  the  message,     ....      212 

196.  Eeasonableness  of  a  regulation  requiring  deposit  to  pay  for 

answer,         ......       213 

197.  Reasonableness  of  regulation  requiring  deposit  to  pay  for 

charges   of   delivery,  ....       213 

19S.    Evidence  of  local  usage  inadmissible  to  vary  the  contract,      214 

199.  Reasonableness  of  regulation  when  a  question  of  law  and 

when  a  question  of  fact,  ....      214 

200.  Instances  where  determined  as  a  question  of  law,  .      215 

201.  Invalidity  of  stipulations  on  night  or  half  rate  messages 

exonerating  from  liability,       ....       215 

202.  Valid  except  in  cases  of  gross  negligence  or  fraud,  .      217" 

Article  II. — Evidence  of  Knowledge  and  Assent. 


SECTION. 

206. 
207. 
208. 
209. 
210. 


211. 
212. 
213. 


Proof  of  knowledge  of  regulation, 

Stipulation  on  message  a  part  of  the  contract, 

Various  statements  of  this  rule. 

Illustrations,    ...... 

Exceptional  view  that  actual  notice  of  the  stipulation  must 

be  brought  home  to  the  sender, 
View  that  customer  bound  to  know  rules  of  company, 
Unsoundness  of  this  view,  . 

View  that  sender  is  bound  by  rules  of  whoce  existence  he 

has  knowledge,  '. 


PAGE. 

21S 
219 
220 
221 

222 
224 
224 

224 


Article  III. — Stipulations  as  to  Repeating. 


SECTION. 

217.  Reasonableness  of  regulation  requiring  message  to  be  re 

peated,  . 

21S.  Does  not  excuse  negligence  or  other  fault, 

219.  Exempts  it  only  from  risks  beyond  its  control, 

220.  Incongruity  of  this  rule, 

221.  Effect  on  the  burden  of  proof  and  evidence, 

222.  Comments  on  these  opposing  views, 

223.  Excuses  mistakes  not  arising  from  gross  negligence, 

224.  This  view  as  understood  in  Massachusetts, 

225.  Further  of  the  Massachusetts  doctrine,      . 

226.  The  same  view  taken  in  New  York, 

227.  This  rule  as  understood  in  Kentucky, 

228.  View  that  condition  as  to  repeating  exonerates  only  from 

liability  for  errors  preventable  by  repeating, 

229.  Illustrations  of  this  view, 


227 
228 
229 
229 
230 
231 

23a 

235 

237 
238 
239 

240- 
242 


XIV  TABLE    OF    CONTENTS. 

230.  Illustrations   continued,  ....  244 

.231.  Cases  of  exoneration  under  this  rule,        .  .  .  246 

232.  Continued,        .  .  .  .  .  .  24S 

233.  Releases  liability  for  mistakes  of  connecting  line,  .  249 

234.  But  does  not  exonerate  connecting 'line,  .  .  24!) 

235.  Simpler  view  that  such  stipulations  are  void,  .  .  250 

236.  Reasons  given  for  this  view,        ....  251 

237.  Receiver  of  message  under  no   obligation  to   have  it  re- 

peated, ......  253 

23S.     "What  amounts  to  a  request  to  have  the  message  repeated,  25G 

239.  Waiver  of  such  stipulation  a  question  for  jury,        .  .  256 

240.  Such   stipulations   apply  only   to  the  message— not  to  the 

date,  ......      257 

241.  Considerations  showing  that  the  condition  as  to  repeating 

is  a  mere  sham,  .....      257 

Article  IV. — Stipulations  and  Limitations  as  to  Time 
and  Manner  of  Presenting  Claims  for  Damages. 

SECTION.  PAGE. 

260 
261 
262 
263 
263 
265 
266 
266 
267 
267 
26S 
269 


245.  Such  stipulations,  when  deemed  reasonable, 

24G.  Reason  of  the  rule,        .... 

247.  Limitation  of  sixty  days  not  unreasonable, 

24S.  Validity  of  limitation  of  less  than  sixty  days, 

249.  Circumstances  under  which  such  limitation  too  short, 

250.  Thirty  days'  limitation  with  knowledge  of  loss  sufficient 

251.  Whether  applicable  to  actions  for  statutory  penalties, 

252.  .Applies  only  in  cases  where  message  is  sent, 
.253.  What  not  a  waiver  of  written  notice, 

254.  Notice  must  be  delivered  to  an  authorized  agent, 

255.  When  such  a  limitation  begins  to  run, 
.256.  Commencement  of  suit  equivalent  to  notice  in  writing, 

CHAPTER  IX. 

CONNECTING    LINES. 
SECTION.  PAGE. 

261.  Statutory  obligation  to  forward  dispatches   delivered  by 

connecting  lines,         .  .  .  .  .'     270 

262.  Not  liable  for  defaults  of  connecting  lines,  .  .      271 

263.  May  stipulate  against  liability  for  defaults  of  connecting 

lines,  ......       272 

264.  May  become  so  liable  by  contract,  .  .  .      273 

265.  Reasonableness  of  particular  regulations  as  to  connecting 

lines,  ......      273 

260.    Evidence  of  negligence  where  dispatch  received  from  con- 
necting line,  .....      274 


TABLE    OF    CONTENTS.  XV 

267.    Illustrations :    negligence  of  connecting  lines — change  of 

address,        ......  274 

26S.     Company  receiving  message  from  connecting  line  cannot 

avail  itself  of  conditions  in  message  blank,          .               .  275 

CHAPTER  X. 

NEGLIGENCE  BY  TELEGRAPH  COMPANIES. 

Article  I. — Evidence  of  Negligence. 

SECTION.  PAGE. 

273.  When  the  happening  of  an  accident  is  evidence  of   negli- 

gence :    Res  ipsa  loquitur,        ....  277 

274.  The  undertaking  and  failure   constitute  prima  facie  evi- 

dence of  negligence,                ....  279 

275.  Failure  to  transmit.        .  .  .  .  .280 

276.  Error  in    transmission,                ....  281 

277.  How  in  cases  where  there  is  a  stipulation  against  liability 

unless  the  message  is  repeated,               .               .               .  282 

278.  Incongruity  of  these  holdings  pointed  out,               .  2S2 

279.  A  corresponding  divergence  of  opinion  in  the  case  of  com- 

mon  carrier's,              .....  283 

280.  What  circumstances  afford  evidence  of  "gross  negligence,"  285 

281.  Evidentiary  circumstances  rebutting  this  prima  facie  case,  286 

282.  Burden  as  to  free  delivery  limits,                .                .                .  287 

Article  II. — In  Cases  of  Non-Delivery. 

SECTION.  PAGE. 

2S6.    Must  make  what  efforts  to  deliver  message,             .               .  288 

287.  Diligence  in  delivering  whether  a  question  of  law  or  of  fact,  288 

288.  Cases  where  ruled  as  a  question  of  law,               .               .  290 

289.  Delivery  to  other  person  than  the  addressee,           .               .  291 

290.  Where  the  message  is  addressed  to  one  person  in  the  care 

of   another,                  .....  292 

291.  Plaintiff  not  bound  to  show  that  the  addressee  was  at  his 

office  ready  to  receive  the  message,       .               .               .  292 

292.  What  evidence  relevant  on  this  question,               .               .  292 

Article  III. — In  Cases  of  Delay. 

SECTION.  PAGE. 

295.  General  view  as  to  liability  for  delay,        .                .                .  294 

296.  Rule  as  to  urgent  messages,         ....  295 

297.  What   disclosures   of    urgency    sufficient,                .                .  2!>7 

298.  What  delay  evidence  of  negligence,           .                .                .  2:»7 


XVI 


TABLE    OF    CONTENTS. 


299.  Reception  at  small  station:  Transmission  through  repeat- 

ing offices,    ...... 

300.  Question  how  affected  by  the  hours  of  closing  the  com- 

pany's office,  ..... 

301.  "What  excuses  insufficient,  -     . 

302.  "Whether  plaintiff  injured  by  the  delay  a  question  for  the 

jury,  ...... 

303.  No  recovery  of  damages  unless  delay  prejudicial. 


29  S 

299 
300 

301 
301 
304.    Delay  by  changing  route  in  consequence  of  bad  weather,      302 

CHAPTER  XI. 

DAMAGES  IN  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

Article  I. — Rule  in  Hadley  v.  Baxendale. 


SECTION. 

310.  The  measure  of  damages  governed  by  general  rules, 

311.  Rule  in  Hadley  v.  Baxendale :    damages  in  contemplation 

of  the  parties,  .... 

312.  That  rule  as  explained  in  a  leading  case  in  New  York, 

313.  Special  circumstances  must  be  communicated  to  the  com 

pany,  ..... 

314.  English  case  in  illustration  of  the  rule, 

315.  Agents  who  receive  dispatches  for  transmission  are  agents 

to  receive  such  information,     . 

316.  Conclusions  flowing  from  these  rules, 

Article  II. — Proximate  and  Remote  Damages. 


page. 
303 

304 
30& 

308- 
309 

309 
310 


SECTION. 

31S.  Only  direct  or  proximate  damages  recoverable, 

319.  Damages  due  to  the  operation  of  an  intervening  cause, 

320.  Intervening  fraud  of  a  third  person, 

321.  Non-delivery  of  message  asking  for  information. 

322.  Error  in  message  notifying  date  of  trial  of  a  cause, 

323.  Non-delivery  of   a  message  requesting  postponement  of  a 

judicial   trial,  .... 

324.  Other  instances  of  damages  too  remote, 

325.  Loss  of  fee  by  a  professional  man, 

326.  Losiug  a  chance  of  obtaining  employment. 

327.  Plaintiff  failing  to  obtain  employment. — Rule  under  Indi- 

ana statute,  .... 

32S.    The  same  subject :    Nebraska  statute, 

329.  Loss  of  opportunity  to  save  debt  by  attachment, 

330.  Operator  fraudulently    withholding    message    announcing 

failure  of  bank,  .  .  .  .  . 


PAGE. 

312 
313 
314 
316 
318 

319 
320 
321 
322 

322 
324 
325 

327 


TABLE.  OF    CONTENTS. 


XV11 


331.    Right  to  recover  the  cost  of  sending  message, 


328 


Article  III. — Loss  of  Profits. 

SECTION.  PAGE. 

335.  Mistake  in  transmitting  message  ordering  sales  or  making 

or  directing  purchases,              ....  329 

336.  Mistakes   in   dispatches   ordering    goods,                .                .  330 

337.  Ordering  broker  to  buy  or  sell,                .                .                .  331 
33S.     Mistake  resulting  in  goods  being  sent  to  the  wrong  place,  333 

339.  Other  instances  of  loss  of  profits  where  dispatch  ordered 

affirmative  action,      .....  333 

340.  Damages  arising  from  mistake  in  quoting  prices,                .  335 

341.  Cases  in  illustration,      .....  330 

342.  Dispatch  quoting  prices  sent  by  a  volunteer,            .                .  338 

343.  Damages  from  delay  of   message  accepting  offer  of  (sale,  338 

344.  Illustration :    Loss  of  weight  of  cattle,       .                .                .  339 

345.  View  that  rule  is  inapplicable  where  object  is  speculation,  340 

346.  Loss   of  certain  profits  recoverable:    Loss  of    contingent 

profits   not,                  .....  341 

347.  Application  of  this  principle,       .                .                .                .  342 

348.  Illustrations  of  it,            .                .                .                .                .  313 

349.  Further  illustrations,      .  .  .  .  .346 

350.  Further  illustrations,      .....  347 

351.  A  modified  holding.       .....  34S 

352.  Loss  of  profits  on  intended   but  not  completed  contracts,  34S 

353.  No  damages  under  illegal  contracts:     Option  deals,              .  350 


Article  IV. — Cipher  and  Unintelligible  Dispatches. 


SECTION. 

357.  Application  of  the  rule  in  Hadley  v.  Baxendale   to  unintel- 

ligible dispatches,       .  .  .  .  . 

358.  In  case  of  cipher  or  unintelligible  messages,  nominal  dam- 

ages only,     ..... 

359.  Reasons  adduced  in  support  of  this  rule, 

360.  Rule  applicable  to  unintelligible  dispatches,  though  not  in 

cipher,  ..... 

361.  An  English  case  illustrating  the  rule, 

362.  A  Canadian  case  illustrating  the  rule, 

363.  American  cases  illustrating  it,      . 

364.  Extrinsic  information  of  the  importance  of  the  message, 

365.  Sufficient  that  the  company  is  put  upon  inquiry,     . 

366.  General  information  sufficient,     . 

367.  Instances  of  dispatches  sufficiently-disclosing  the  nature  and 

importance  of  the  transaction, 

368.  Further  illustration, 

(B) 


351 

352 
353 

354 
355 
355 
350 
357 
359 
361 

361 
363 


XVI 11  TABLE    OF    CONTENTS. 

369.  No  distinction  between  non-delivery  and  mistake,  .      36-1 

370.  Stipulation  in  message  blanks  as  to  cipher  or  obscure  mes- 

sages, ......      3G"> 

371.  Stipulation  as  to  repeating,  in  its  application  to  cipher  dis- 

patches,        .  .  .  ,     .  .  .      3GG 

372.  Cases  which   deny  that  there   is  any   distinction  between 

cipher  and  other  dispatches  in  respect  of  the  measure  of 
damages,      ......       3GG 

373.  Exemplary  damages  for  the  non-delivery  of  cipher  dis- 

patches,       ......       367 

374.  Unintelligible  dispatches  subject  to  parol  explanation,        .      368 

375.  Evidence  that  agent  had  information  of  nature  of  message,      368 

Article  V. — Injury  to  the  Feelings. 

SECTION.  PAGE. 

378.  Damages  given  for  injury  to  the  feelings  alone,      .  .      369 

379.  Judicial  observations  in  support  of  this  view,  .  .       370 

350.  Illustrations,  .  .  .  .  .373 

351.  Kule  clearer  where  the  mental  is  coupled  with  physical  pain,      373 

382.  Not  given  as  exemplary  damages,  .  .  .      374 

383.  Illustrations,  .....       37") 

384.  View  that  no  damages  can    be  given    for   mere  mental 

anguish,        .  376 

385.  Husband  cannot  recover  for  injury  to  his  own  feelings  where 

the  action  is  for  an  injury  to  the  wife,  .  .  .  .    378 

386.  The  company  must  be  apprised  of  the  special  circumstances,      379 

387.  Further  on  this  subject,  .  .  .  .380 

388.  Further  views  as  to  the  measure  of  damages  in   such   cases,      382 

389.  Failure  to  deliver  a   telegram  calling  a  physician  in   a   case 

of  confinement,  .....      383 

390.  Difference  between  quantity  of  pain  suffered  and    quantity 

which  would  have  been  suffered,  .  .  .       384 

391.  What  if  the  doctor  could  not  have  reached  the  patient  in 

any  event,     ......      384 

392.  Damages  for  failure  of  husband  to  attend  his  wife  in  case  of 

confinement,  .....      385 

393.  Quantum  of  damages  for  mental  suffering,  .  .      385 


Article  VI. — Miscellaneous  Holdings. 

SECTION.  PAGE. 

398.  Exemplary  damages,  when  given,  .                .                .       387 

399.  Financial  condition  of  sender,     ....      388 

400.  A  case  where  "liberal  damages"  were  allowed,      .  .      3S8 

401.  Damages  under  the  Wisconsin  statute,      .  .               .389 


TABLE    OF    CONTENTS. 


XIX 


402.  Special  damages  must  be  alleged  and  proved,         .               .  390 

403.  Further  as  to  proof  of  damages,      .                           .               .  390 

404.  Claiming  one  kind  of  damage  of  the  company  and  recover- 

ing another,     .                            .                .                .                .  392 

CHAPTER  XII. 

CONTRIBUTORY    FAULT  OF  THE  PLAINTIFF. 
SECTION.  PAGE. 

410.  Duty  of  the  person  damaged,  on  discovering  the  failure  of 

the  company,               .....  393 

411.  How  damages  affected  by  subsequent  action  of  plaintiff,     .  393 

412.  Case  where  the  plaintiff  was  exonerated  from  charge  of 

subsequent  negligence,             ....  396 

413.  When  not  bound  to  notify  company  of  error,          .                .  397 

414.  Reselling  and  charging  company  with  difference,                  .  398 

415.  Plaintiff  not  bound  to  invest  further  money,            .                .  399 
410.     Contributory  negligence  of  the  sender,     .                .                .  400 
417.     Contributory  negligence  of  the  person  receiving  the  mes- 
sage,             ......  400 


CHAPTER  XIII. 


PARTIES  TO  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 


SECTION. 

422.  English  rule  that  sender  only  can  sue, 

423.  Even  in  the  case  of  malfeasance, 

424.  Unsoundness  and  injustice  of  the  English  rule, 

425.  Exception  where  sender  is  agent  of  the  addressee, 

426.  American  rule:  Action  by  addressee  for  non-delivery, 

427.  View  which  sustains  the  right  of  action  in  the  addressee, 

428.  Action  by  addressee  for  mistake, 

429.  Illustration  of  these  views, 

430.  When  the  addresse  must  sue  in  tort, 

431.  Where  the  sender  is  agent  of  a  third  person,  principal  may 

sue,  ..... 

432.  Although  he  be  an  undisclosed  principal, 

433.  So,  where  sender  is  the  agent  of  the  addressee, 

434.  Broker  transmitting  message  for  principal  and  suing  in  his 

own  name,  .... 

435.  Stranger  to  both  sender  and  addressee, 

436.  Importance  of  the  defendant  having  notice  of  the  agency, 

437.  Action  over  by  sender  for  damages  sustained  by  receiver 

and  recovered  from  the  company, 

438.  Under  Indiana  statutes  giving  penalties,  .    . 


PAGE 

402 
403 
404 
405 
405 
406 
407 
40S 
409 

410 
410 
410 

413 
416 
416 

418 
419 


XX 


TABLE    OF    CONTENTS. 


43!>.  Under  Indiana  statute  giving  special  damages, 

440.  Under  Missouri  statute  giving  special  damages, 

441.  Under  Mississippi  statute  giving  penalty, 

442.  In  case  of  refusal  of  connecting  line  to  forward, 

443.  Husband  suing  for  wife— Texas  code,   -    . 


419 
420 
420 
420 
421 


CHAPTER  XIV. 

MATTERS  OF  PROCEDURE  AND  EVIDENCE. 

Article  I. — Pleading. 

SECTION. 

448.  Form  of  action  :  Contract  or  tort, 

449.  What  the  plaintiff  must  aver  and  prove,     . 

450.  Under  the  Indiana  statute  giving  a  penalty, 

451 .  Examples  of  good  declarations  or  complaints, 

452.  Another  example, 

453.  Example  of  a  petition  bad  because  damages  too  remote, 

454.  Uniting  claim  for  statutory  penalty  with  claim  for  damages, 

455.  Allegata  et  probata :  variance,  .  .  .  . 

Article  II. — Evidence. 


PAGE. 
422 
423 
423 
424 
425 
426 
427 
427 


SECTION. 

45S.  Declarations  of  the  company's  agents, 

459.  Correspondence  between  telegraph  operators, 

460.  Evidence  on  the  question  of  damages, 

461.  Other  points  of  evidence, 

462.  Evidence  of  claim  of  indemnity  duly  made  of  company. 

463.  Parol  evidence  of  contents  of  such  claim, 

464.  When  copy  of  message  admissible  in  evidence, 

465.  Judicial  notice  not  taken  of  telegraph  lines, 

466.  Secondary  evidence  of  the  contents  of  the  telegram, 


PAGE. 

428 
428 
429 
430 
431 
432 
432 
432 
433 


Article  III. — Other  Matters. 

SECTION. 

469.  Service  of  process  on  such  companies, 

470.  Instructions,     .... 

471.  Immaterial  special  findings, 

CHAPTER    XV. 


PAGE. 

435 
435 
436 


CONTRACTS  BY   TELEGRAPH. 


SECTION. 

475.    Validity  of  contracts  by  telegraph, 


PAGE. 

437 


TABLE    OF    CONTENTS.  XXI 

476.  Telegram  a  memorandum  under  statute  of  frauds,  .      437 

477.  When  offer  deemed  to  have  been  accepted,  .  .      43S 

478.  Place  of  contract:  Offer  in  one  State,  acceptance  in  an- 

other, .  .  .  .  .  .439 

479.  Certainty  in  the  proposition  and  acceptance,           .  .  439 

480.  View  that  the  company  is  not  the  agent  of  the  sender,  .  440 

481.  The  same  view  in  an  American  courtr      .               .  .  441 

482.  Weight  of  American  doctrine  to  the  contrary,         .  .  445 

483.  Ratification  of  such  agency,          ....  445 
4S4.  Rights  of  sender  of  message  against  company  in  such  a 

case,  ......    44G 

485.  Illustration:  Sender  must  fulfill   order  as  delivered,   and 

seek  recourse  of  the  telegraph  company,  .  .      447 

486.  Another  illustration,       .....      448 
4S7.     A  qualification  of  this  rule,  ....      448 

CHAPTER  XVI. 

TELEGRAPH  DISPATCHES  AS  EVIDENCE. 
SECTION.  PAGE. 

492.  Relevancy  of  telegraphic  dispatches  as  evidence,  .      450 

493.  Obligation  of  t  elegraph  company  to  produce  them  under 

legal  process — their  inviolability, 

494.  Statutory  protection  of    such   messages, 

495.  Sufficiency  in  the  description  in  the  subpcena  duces  tecum 

496.  Which  is  the  original,  the  dispatch  as  sent  or  the  dispatch 

as  received? 

497.  When  the  message  as  sent  is  deemed  the  original 
49S.     Proof  of  authenticity,    . 

499.  Presumption  that  the  message  as  delivered  to  the  company 

was  delivered  to  the  person  addressed, 

500.  Illustration,      .... 

501.  Delivery  not  proved  by  producing  reply, 

502.  Under  what  circumstances  the  copy  is  admissible 

503.  Illustrations,    .... 

504.  When  oral  evidence  admissible, 

505.  Illustration  :    Secondary  evidence  admissible, 

506.  When  parol  evidence  competent  without  notice  to  produce 

507.  Has  evidentiary  effect  of  a  letter, 

508.  Notice  of  injunction  by  telegram, 

509.  English  practice :    How  such  notice  communicated  by  tele- 

gram, and  duty  of  sheriff's  officer  respecting  same,  .      467 

CHAPTER  XVII. 

MISCELLANEOUS    MATTERS. 
SECTION.  PAGE- 

513.    Purpose  of  this  chapter,  .  .  .  .468 


452 
454 

454 

457 

458 
459 

460 
461 
462 
462 
463 
464 
465 
465 
466 
466 


XX11  TABLE    OF    CONTENTS. 

">]4.  Real  property,  .  .  .  .  .468 

515.  Wires  when  construed  as  personalty,        .                .                .  468 

•">K'».  Electric  light  plant  the  subject  of  a  material-man's  lien,  46!) 

">17.  Injunction  against  the  use  of  telegraph  ciphers,      .                .  409 

51S.  Municipal  taxation  of  telegraph  companies  outside  of  city 

limits,            ......  470 

519.  Municipal   tax  not  exempting  government  business  void,  470 

520.  AVhat  municipal  and  State  taxation  interferes  with  inter- 

state commerce,  .  .  .  .  .171 

521.  Leasing  line  and  breach  of  contract  for  continuous  business,      472 


TABLE  OF  CASES  CITED- 


Abbott  v.  Shepard,  48  X.  H.  14,  p.  438. 
Abeles  v.   Western  Union  Tel.  Co.,  37 

Mo.  App.  554,  pp.  306,  353. 
Abraham  v.  Western  Union  Tel.  Co.,  23 

Fed.  Rep.  315,  p.  163. 
Abraham  v.  Western  Union  Tel.  Co.,  11 

Sawyer  (U.  S.),  28,  pp.  161, 162. 
Adams  v.  Kerr,  1  Bos.  &  Pal.  361,  p.  152. 
Adams    v.   Lindsell,    1   B.   &  Aid.    681, 

p.  438. 
Adams  Express  Co.  v.  Haynes,  42  111. 

89,  p.  223. 
Adams  Express  Co.  v.  Regan,  29  Ind. 

21,  p.  263. 
Aiken    v.  Telegraph    Co.,    5    S.  C.  358, 

pp.  163,  165,  166,  204,  217,  230,  234,  254, 

263,  407,  412. 
Aiken  v.  Western  Union  Tel.   Co.,  69 

Iowa,  31,  pp.  282,  431. 
Alexander  v.  Western  Union  Tel.  Co. 

67  Miss.  386,  pp.  339,  425,  427,  440. 
Allen  v.  Atlantic,  etc.  Tel.  Co.,  21  Hun 

(X.  Y.),22,  p.  109. 
Allentown    v.   Kramer,    73  Pa.  St.  406, 

p.  36. 
Alsop  v.  Caines,  10  Johns.  (X.  Y.)  396, 

p.  413. 
Alton  v.  Hope,  68  111.  167,  pp.  36,  38. 
American   Rapid  Telegraph  Company 

v.  Connecticut    Telephone    Co.,  49 

Conn.  352,  p.  140. 
American  Telephone,  etc.  Co.  v.  Smith, 

71  Md.  535,  p.  22. 
American  Union  Tel.  Co.  v.  Daughtery, 

89  Ala.  191,  pp.  201,  367,  415,  433,434; 

sub  nom. 
American   Union  Tel.  Co.  v.  Daughtry, 

7  South.  Rep.  660. 


American  Union  Tel.  Co.  v.  Harrison, 

31  X.  J.  Eq.  627,  p.  40. 
American   Express  Co.  v.  Sands,  ?5  Pa. 

St.  140,  p.  251. 
Anderton   v.  Shoupe,  17  Ohio  St.  128, 

pp.  413,  415. 
Anheuser-Busch  Brewing  Co.  v.   Hut- 

macher  (111.),  4  L.  R.  A.  575,  p.  458. 
Arlington  v.   Hynds,  1.   D.  Chip.  (Vt.) 

431,  p.  414. 
Archambault  v.  Great  X.  W.  Tel.  Co.,  11 

Montr.  Leg.  Xews,  368,  p.  174. 
Armstrong  v.  Lancanshire,  etc.  R.  Co., 

L.  R.  lOExch.  47,  p.  111. 
Atchison  v.  King,  9  Kan.  550,  p.  35. 
Atlanta  v.  Perdu,  53  Ga.  607,  p.  36. 
Atlantic,  etc.  Tel.   Co.  v.  Chicago,  etc. 

R.  Co.,  6  Biss.  (U.  S.)  158,  pp.  20,  23. 
Atlantic,  etc.  Tel.  Co.  v.  Western  Union 

Tel.  Co.,  4  Daly   (X.  Y.),  527,  pp.  204, 

•273,  274. 
Attorney-General  v.  Xichol,  16  Vesey, 

338,  p.  58. 
Attorney-General  v.  Telephone  Co.,  6 

Q.  B.  Div.  244,  p.  131. 
Attorney-General  v.   United  Kingdom 

Electric  Tel.  Co.,  30  Beav.  287,  p.  34. 
Attorney-General    v.    Western    Union 

Tel.  Co.,  33  Fed.  Rep.  129,  p.  59. 
Aurora  v.  Reid,  57  111  29,  p.  35. 
Austin's  Case,  Vent.  187,  p.  37. 
Averill  v.  Hedge,  12  Conn.  424,  p.  438. 
Ayer  v.  Western  Union  Tel.  Co.,  7'.'  Me 

493,  pp.  250,  282,  418,  445,  446,  448. 

B. 

Backer  v.  Western   Union  Tel.  Co.,  11 

Neb.  S7,  )>.  234. 
Baker  v.  Brinson,  '.>  Rich.  i>.  (S.  C.)  201, 

p.  284. 


XXIV 


TABLE    OF    CASKS    CITED. 


Baldwin  v.  United  States  Tel.  Co.,  45  N. 

Y.   744,  pp.  163,  166,  208,  241,  271,  272, 

276,  280,  296,  308,  318,  338,  353,  357,  418, 

426. 
Baldwin    v.   United  States  Tel.  Co.,  1 

Lans.  (N.  Y.)  125,  pp.  223,  412. 
Baltimore  v.  Marriott,  9  Md.  160,  pp.  35, 

37. 
Baltimore  v.  Pendleton,  15  Md.  12,  p.  35. 
Baltimore,  etc.  R.  Co.  v.  Reaney,  42  Md. 

117,  p.  98. 
Baltimore,  etc.  Tel.  Co.  v.  Lovejoy,  48 

Ark.  301,  p.  199. 
Baltimore,  etc.  Tel.  Co.  v.  State,  6  S.  W. 

Rep  513,  p.  188. 
Bank  v.  McMonigle,60  Pa.  St.  156,  p.  152. 
Bank  v.  Western    Union    Tel.    Co.,  39 

Minn.  181,  p.  170. 
Bank  of  British  N.  America  v.  Hooper, 

15  Gray  (Mass.),  567,  p.  415.  , 
Bank  of  California  v.  Western  Union 

Tel.  Co.,  52  Cal.  280,  p.  409. 
Bank  of  Manchester  v.  Slayson,  13  Vt. 

334,  p.  414. 
Bank  of  New  Orleans  v.  Western  Union 

Tel.  Co.,  27  La.  An.  49,  p.  273. 
Banks  v.  Werts,  13  Ind.  203,  p.  192. 
Barber  v.  Saginaw  Union  Street  R.  Co. 

(Mich.),  47  N.  W.  Rep.  219,  pp.  30,  32. 
Bardwell  v.  Jamaica,  15  Vt.  438,  p.  57. 
Barlow    v.   Congregational    Society,  8 

Allen  (Mass.),  461,  p.  415. 
Barnes  v.  District  of  Columbia,  91  U.  S. 

540,  p.  36. 
Barnum  v.  Vandusen,  16  Conn.  200,  p. 

104.  ' 
Barons  v.  Brown,  25  Kan.  410,  p.  458. 
Barrett  v.  American  Telephone  Co.,  10 

N.  Y.  Supr.  138,  p.  435. 
Barron  v.  Baltimore,  7  Pet.  (U.  S.)  243, 

p.  99. 
Barry  v.  Page,  10  Gray  (Mass.),  398,  p. 

413. 
Barry  v.  Terkildsen,  72  Cal.  254,  p.  111. 
Bartlett  v.  Tucker,  104  Mass.  336,  p.  415. 
Bartlett  v.  Western  Union  Tel.  Co.,  62 

Me.  209,  214,  pp.  161,  163,  217,  231,  280, 

281. 
Bass  v.  O'Brien,  12  Gray  (Mass.),  447,  p. 

415. 
Bassett  v.  Lederer,  8  N.  Y.  Sup.  Ct.  676, 

p.  414. 
Bassett  v.  St.  Joseph,  53  Mo.  290,  p.  36. 
Bassett  v.  Western  Union  Tel.  Co.,  St. 

Louis  Ct.  Appeals,  No.  4884,  not  yet 

reported,  p.  196. 
Baxter  v.   Dominion    Tel.  Co.,  37  Up. 

Can.  (Q.  B.)  470,  pp.  162,  204,  234. 
Bayley  v.  Onondaga  County  Mut.  Ins. 

Co.,  6  Hill  (N.  Y.),  476,  p.  415. 


Beasley  v.  Western  Union  Tel.  Co.,  39 

Fed.    Rep.   181,  pp.   166,  220,  225,  226, 

263,  301,  302,  370,  382. 
Beaulieu  v.  Fingham,   (Yearb.)  2  Hen. 

IV.,fol.  18,  pi.  16,  p.  104. 
Beaupre    v.   Pacific,   etc.    Tel.    Co.,  21 

Minn.  155,  pp.  338,  339,  350,  353,  439. 
Becker  v.  Western   Union  Tel.  Co.,   11 

Neb.  87,  pp.  230,  282. 
Beckett  v.  Beckett,  48  Mo.  396,  p.  104. 
Beckham  v.  Drake,  9  Mees.  &  W.  79,  p. 

413. 
Bedford  Commercial  Ins.  Co.  v.  Covell, 

8  Mete.  (Mass.)  442,  p.  415. 
Beebe  v.  Robert,  12  Wend.  (N.  Y.)  413, 

p.  413. 
Beekman    v.  Saratoga,  etc.  R.  Co.,   3 

Paige  (N.  Y.),45,  p.  19. 
Beer  Co.  v.  Massachusetts,  97  U.  S.  25, 

pp.  2,  3. 
Behm    v.  Western    Union    Tel.  Co.,   8 

Biss.  (U.  S.)  131,  pp.  299,  353. 
Belger  v.   Dinsmore,  51   X.   Y.   166,  pp. 

218,  220,  221. 
Bell  v.  Dominion  Tel.  Co.,  3  Mont.  Leg. 

News,  406,  pp.  208,  241,  412. 
Bell  v.  West  Point,  51  Miss.  262,  p.  35. 
Belun  v.  Western  Union  Tel.  Co.,  7  Re- 
porter, 710,  pp.  296i  353. 
Benford  v.  Tanner,  40  Pa.  St.  9,  p.  451. 
Bennett  v.  New  Jersey,  etc.  R.  Co.,  36 

N.  J.  L.  225,  p.  112. 
Bennett  v.  Western  Union  Tel.  Co.,  18 

N.   Y.  St.  Rep.  777,   pp.  212,  220,  228, 

249,267,268,432. 
Berry  v.  Cooper,  28  Ga.  543,  pp.  251,  284. 
Birney  v.  New  York,  etc.  Tel.  Co.,  18 

Md.  341,  pp.  162,  202,  218,  224,  228,  240, 

243. 
Biscoe  v.  Great  Eastern  Railway  Co., 

L.  R.  16  Eq.  636,  p.  97. 
Bishop,   In  re,   13  Ch.  Div.  110,  pp.  466, 

467. 
Black  v.  Goodrich  Transp.  Co.,  55  Wis. 

319, p.  251. 
Blake  v.  Cornwell,  65  Mich.  467,  p.  31. 
Blake  v.  Railway  Co.,  10  Eng.  L.  &  Eq. 

442, p.  377. 
Blake  v.  St.  Louis,  40  Mo.  569,  p.  36. 
Bliss  v.  Baltimore,  etc.  Tel.  Co.,  30  Mo. 

App.  103,  p.  304. 
Board  of  Trade  Tel.  Co.  v.  Barnett,  107 

111.  507,  p.  21. 
Bodkin  v.   Western  Union  Tel.  Co.,  31 

Fed.  Rep.  134,  p.  320. 
Bolan  v.  Williamson,  1  Brev.  (S.  C.)  181, 

p.  106. 
Bordentown,  etc.   Tp.  Co.  v.  Camden, 
etc.  R.  Co.,  17  N.  J.  L.  314,  p.  96. 


TABLE    OF    CASES    CITED. 


XXV 


Boston  v.  Worthington.lOGray  (Mass.), 

496,  p.  38. 
Boston  Safe  Deposit  Co.  v.  Bankers', 

etc.  Tel.  Co.  36  Fed.  Rep.  288,  p.  469. 
Bonlton  v.  Crowther,  4  Dowl.  &  Ry.  195, 

pp.  33,  96. 
Bowen  v.Lake  Erie  Tel.  Co.,  1  Am.  L. 

Reg.  685,  pp.  331,  346,  367. 
Bowie  v.  Kansas  City,  51  Mo.  454,  p.  36. 
Bradt  v.   Albany,   5  Hun   (N.  Y.),  591, 

p.  35. 
Breckenridge  v.  Crocker,  78  Cal.  529,  p. 

440. 
Breese  v.  United  States  Tel.  Co.,  48  N. 

Y.  132,   pp.   161,  162,  163,  201,  204,  218, 

220,  221,  223,  226,  228,  234,  246,  346. 
Briggs  v.  Hervey,  130  Mass.  187,  p.  152. 
Briggs  v.  Partridge,  64  N.  Y.  357,  p.  410. 
Brine  v.  Great  Western  Railway  Co.,  31 

L.  J.  (Q.  B.)  101,  p.  97. 
British    Cast  Plate    Manufacturers  v. 

Meredith,  4  T.  R.  794,  pp.  32,  96. 
British,  etc.  Tel.  Co.  v.  Colson,  L.  R.  6 

Exch.  108,  p.  438. 
Broadbent  v.  Imperial  Gas- Light  Co., 

20  L.  J.  (Ch.)  280,  p.  97. 
Brooklyn  v.  Brooklyn  City  R.  Co.,  47  N. 

Y.  475,  p.  38. 
Broome  v.  New  York,  etc.  Tel.  Co.,  49  N. 

J.  L.  624, p.  43. 
Broome  v.  New  York,  etc.  Tel.  Co.,  42 

N.  J.  Eq.  141,  p.  45. 
Brower  v.  New  York,  3  Barb.  (N.  Y.) 

254,  p.  35. 
Brown,  Ex  parte,  7  Mo.  App.  484,  pp.  452, 

455,  457. 
Brown,  Ex  parte,  72  Mo.  83,  pp.  452,457. 
Brown  v.  Adams  Exp.  Co.,  15  W.  Va. 

812, p.  285. 
Brown    v.    Eastern    R.    Co.,    11    Cush. 

(Mass.)  97,  p.  223. 
Brown  v.  Houston,  114  U.  S.  622,  p.  2. 
Brown  v.  Lake  Erie  Tel.  Co.,  1  Am.  L. 

Reg.  685,  p.  281. 
Brown    v.    Western    Union    Tel.    Co. 

(Utah),  21  Pac.  Rep.  988,  pp.  215,  296, 

301. 
Browning  v.  Springfield,  17  111.  143,  p.  36. 
Brownlow  v.  Metropolitan  Board,  16  C. 

B.  (N.  S.)  546,  p.  85. 
Brush    Electric  Lighting  Co.  v.   Kelly 

(Ind.)  9  Rail.   &  Corp.   L.  J.  135,  p. 

111. 
Bryant,  In  re,  L.  It.  4  Ch.  D.  98,  pp.  466, 

467. 
Bryant  v.  American  Tel.  Co.,  1  Daly  (N. 

Y.),  575,  pp.  163,  188,243,  296,  327. 
Buccleugh  v.   Metropolitan    Board    of 

Works,  L.  R.  5  H.  L.  418,  p.  33. 


Buchanan  v.  Log  Running  Co.,  4S  Mich. 

364,  p.  31. 
Burgess  v.  Northwich  Local  Board,  L. 

R.  6  Q.  B.  Div.  264,  p.  97. 
Burke  v.  Railway  Co.,  10  Cent.  L.  J.  48, 

p.  378. 
Burnett  v.  Western  Union  Tel.  Co.,  39 

Mo.   App.  599,  pp.  184,   185,  186,   195, 

196. 
Burroughs    v.    Housatonic    R.  Co.,  15 

Conn.  124,  p.  96. 
Burton  v.  Larkin,  36  Kan.  246,  p.  406. 
Bussard  v.  Levering,  6  Wheat.   (U.  S.) 

102,  p.  152. 
Butchers'  Union  v.  Crescent  City  Co., 

Ill  U.  S.  746,  p.  2. 
Butterfleld  v.  Forrester,  11  East,  60,  p. 

109. 
Byington    v.    Simpson,    134  Mass.   169, 

p.  413. 


C. 


Cable  Co.  v.  Attorney  General,  l  Dicks. 

270,  p.  141. 
Calhoun  v.  Atchison,  4  Bush  (Ky.),  261, 

p.  437. 
California,  etc.  Tel.  Co.  v.  Alta  Tel.  Co., 

22  Cal.  398,  p.  11. 
Callender  v.  Marsh,  1  Pick.  (Mass.)  417, 

p.  33. 
Camp    v.  Western    Union   Tel.    Co.,    1 

Mete.  (Ky.)  164,  pp.  163,  228,  234,239, 

240,  246,  272. 
Camp   v.   Western  Union  Tel.  Co.,  71 

Am.  Dec.  463,  p.  365,  note. 
Campbell  v.  Montgomery,  53  Ala.  527, 

p.  37. 
Candee  v.  Western  Union  Tel.  Co.,  34 

Wis.  471,  pp.  161,  201,  205,  217,  296,  306, 

353,  354. 
Cannon  v.  Western  Union  Tel.  Co.,  100 

N.  C.  311,  pp.  353,  366. 
Carey  v.  Pitt,  Peake  Add.  Gas.  130,  p. 

150. 
Carnahan  v.  Western  Union  Tel.  Co., 

89  Ind.  526,  pp.  186, 189,  191. 
Carpenter  v.  Farnsworth,  106  Mass.  561, 

p.  415. 
Carroll    v.   St.   Louis,    4  Mo.  App.  191, 

p.  36. 
Carter  v.  Towne,  103  Mass.  507,  p.  172. 
Catlet  v.  Trustees,  62  Ind.  365,  p.  192. 
Centerville  v.   Woods,  57  Ind.  192,  pp. 

36,  38. 
Central  District,  etc.  Telephone  Co.  v 

Com.,  114  Pa.  St  592,  p.  13s. 
Central  Union  Telephone  Co.  v.  Brad- 
bury, 106  Ind.  1,  pp.  130,  145. 


XXVI 


TABLE    OF    CASES    CITED. 


Central  Union  Telephone  Co.  v.  Falley, 

US   Ind.  194,  pp.  130,  134,  136,  140,  141, 

143,  145. 
Central  Union  Tel.  Co.  v.  State,  123  Ind. 

113, p.  136. 
Central  Union  Tel.  Co.  v.  State,  118  Ind. 

598,  p.  136. 
Centralia  v.  Scott.  59  111.  129,  p.  36. 
Chaffee  v.  Telephone,  etc.  Co.,  77  Mich. 

625,  p.  27. 
Chamberlain  v.  Chester,  etc.  R.  Co.,  1 

Exch.  180,  p.  97. 
Chandler  v.  Coe,  54  N.  H.  561,  p.  413. 
Chapman  v.  New  Haven  R.  Co.,  19  N. 

Y.  341,  pp.  112,  321,  370,  372,  373. 
Charleston  v.  Postal  Tel.  Co.,  9  Rail.  & 

Corp.  L.  J.  129,  pp.  470,  471. 
Chase    v.   Western   Union  Tel.  Co.,  44 

Fed.  Rep.  564,  pp.  376,  377. 
Chesapeake,    etc.    Telephone    Co.    v. 

Baltimore,  etc.  Tel.  Co.,  66  Md.  399, 

pp.  135, 137, 138. 
Chicago  v.  Fowler,  60  111.  322,  p.  36. 
Chicago  v.  Herz,  87  111.  541,  p.  36. 
Chicago  v.  Robbins,  2  Black  (U.  S.),  418, 

pp.  35,  38. 
Chicago  v.  Rumsey,  87  111.  348,  p.  33. 
Chicago  v.  Smith,  48  111.  107,  p.  36. 
Chicago,  etc.  Bridge  Co.  v.  Pacific  Mut. 

Tel.  Co.,  36  Kan.  113,  p.  13. 
Chicago,  etc.  R.  Co.  v.  Abels,  60  Miss. 

1017,  pp.  251,  285. 
Chicago,  etc.  R.  Co.  v.  Moss,  60  Miss. 

1003, p.  285. 
Chicago,  etc.  R.  Co.  v.  People,  56  111. 

365,'  p.  136. 
Child    v.  Boston,  4  Allen   (Mass.),  41, 

p.  37. 
Chy  Lung  v.  Freeman,  92  U.  S.  275,  p.  3. 
City  &  Suburban  Tel.  Ass'n  v.  Cincin- 
nati, etc.  R.  Co.,  23  Weekly    Law 

Bulletin,  165,  p.  54. 
City  of   Big    Rapids    v.  Comstock,    65 

Mich.  78,  p.  31. 
City  of   New  Orleans  v.  Great  South. 

Telephone,  etc.  Co.,  40  La.  An.  41, 

p.  158. 
City  of  Norwich,  The,  4  Ben.  (U.  S.)  271, 

p.  251. 
City  of  Richmond,  The,  43  Fed.  Rep.  85, 

p.  IIS. 
Clara  Killam,  The,  39  L.J.  (Adm.)  50, 

p.  119. 
Clarain  v.  Western   Union  Tel.   Co.,  40 

La.  An.  178,  p.  123. 
Clark  v.  Barnwell,  12  How.  (U.  S.)  272, 

p.  284. 
Clay  v.  Western  Union  Tel.  Co.,  81  Ga. 

285,  p.  348. 
Clemence  v.  Auburn,  66  N.  Y.  334,  p.  35. 


Clement  v.  Western  Union  Tel.  Co.,  137 
Mass.  4U8,  pp.  234,  238. 

Cleveland  v.  St.  Paul,  18  Minn.  279,  p.  36. 

Cleveland,  etc.   R.  Co.  v.  Speer,  56  Pa. 

St.  325,  p.  96. 
Clothier  v.  Webster,  30  L.  J.  (C.  P.)  306, 

p.  97. 
Coe  v.  Errol,  116  U.  S.  517,  p.  142. 
Cole  v.  Western  Union  Tel.  Co.,  33  Minn. 

227, p.  263. 
Coleman  v.  Elmira  Nat.  Bahk,  53  N.  Y. 

388.  pp.  410,  415. 
Collins  v.  Council  Bluffs,  32  Iowa,  324, 

p.  36. 
Colorado  Electric  Co.   v.    Lubbers,  11 

Colo.  505,  p.  125. 
Colton  v.  Cleveland,  etc.  R.  Co.,  67  Pa. 

St.  211,  p.  284. 
Commercial  Union  Tel.  Co.  v.  New  En- 
gland Telephone  Co.,  61  Vt.  241,  pp. 

135, 137, 138. 

Commonwealth     v.     Alger,    7     Cush. 
(Mass.)  53,  p.  42. 

Commonwealth  v.  American  Bell  Tele- 
phone Co.,  129  Pa.  st.  217,  p.  157. 
Commonwealth  v.  Boston,  97  Mass.  558, 

p.  34. 
Commonwealth  v.  Erie,  etc.  R.  Co.,  27 

Pa.  St.  351,  p.  48. 
Commonwealth  v.  Fisher,  1  Pa.  St.  467, 

pp.  96,  98. 
Commonwealth    v.    Jeffries,     7   Allen 

(Mass.),  548,  pp.  451,  460,  461. 
Commonwealth  v.   Petersham,  4  Pick. 

(Mass.)  119,  p.  37. 
Commonwealth  v.  Springfield,  7  Mass. 

9,  p.  37. 
Conrad  v.  Ithaca,  16  N.  Y.  158,  p.  35. 
Considerant  v.   Brisbane,  2  Bosw.  (N. 

Y.)  471,  p.  415. 
Conway  v.   Railway  Co.,  24  Mo.   App. 

235,  p.  127. 
Cooley  v.  Port  Wardens,  12  How.    (U. 

S.)  299,  p.  2. 
Cornell  v.  Detroit,  etc.   R.  Co.  (Mich.) , 

46  N.  W.  Rep.  791,  pp.  110, 120. 
Correll    v.   Burlington,  etc.   R.   Co.,  38 

Iowa,  120,  p.  112. 
Corson  v.  Maryland,  120  U.  S.  502,  p.  2. 
Cory  v.  Thames  Iron  Works,  L.  R.  3  Q. 

B.  181,  p.  316. 
Cothran  v.  Western  Union  Tel.  Co.,  83 

Ga.  25,  p.  350. 
Coupland  v.  Arrowsmith,  18L.T.  (N.  S.) 

755,  p.  466. 
Cracknell  v.  Thedford,  L.  R.  4  C.  P.  629, 

p.  33. 
Crain  v.  Petrie,  6  Hill  (N.  Y.),  522,  p.  172. 
Crittenden  v.  Wilson,  5  Cow.  (N.  Y.)  165 

p.  98. 


TABLE    OF    CASES    CITED. 


XXVU 


Crosby  v.  Watkius,  12  Cal.  88,  p,  413. 
Cuddy  v.  Horn,  46  Mich.  596,  p.  112. 
Culver  v.  Warren,  36  Kan.  391,  p.  446. 
Cumberland  Telephone  Co.  v.   United 

Electric  K.  Co.,  42  Fed.  Rep.  273,  pp. 

56,  131. 
Cutts  v.  Western  Union  Tel.  Co.,  71  Wis. 

46,  pp.  390,  429. 


D. 


Damour  v.  Lyons,  44  Iowa,  276,  p.  35. 
Dana  v.  Kemble,  19  Pick.  (Mass.)  112, 

pp.  152,  460. 
Dancer  v.  Hasting,  4  Bing.  2,  p.  413. 
Daniel  v.   Western  Union  Tel.  Co.,' 61 

Tex.  452,  p.  353. 
Danville,  etc.  Turnp.  Co.  v.  Stewart,  2 

Mete.  (Ky.)  119,  p.  112. 
Dargan  v.  Mobile,  31  Ala.  469,  p.  36. 
Daughtery  v.  American  Union  Tel.  Co., 

75  Ala.  168,  p.  367. 
Davenport  v.  Ruckman,  37  N.  Y.  56S,  p. 

35. 
Davidson  v.   Graham,  2  Ohio  St.  131,  p. 

284. 
Davidson  v.  Nichols,  11  Allen  (Mass.), 

514,  p.  172. 
Davis  v.  Bangor,  42  Me.  522,  p.  37. 
Davis  v.  Barger,  57  Ind.  54,  p.  192. 
Davis  v.  Dudley,  4  Allen  (Mass.),  557,  p. 

114. 
Davis  v.  Wabash,  etc.  R.  Co.,  89  Mo.  340, 

pp.  284,  285. 
Davis  v.  Western  Union  Tel.  Co.,  1  Cin. 

Sup.  Ct.  100,  pp.  294,  389. 
Dean  v.  Borden,  15  Tex.  298,  p.  466. 
Dean  v.  MiJford,  5  Watts  &  S.  (Fa.)  545, 

p.  36. 
Decker  v.  Gammon,  44  Me.  322,  p.  104. 
De  LaGrange  v.  Southwestern  Tel.  Co., 

25   La.   An.   383,  pp.   231,  249,  250,  254, 

274,  406,  407,  412. 
Delaporte  v.  Madden,  17  L.  Can.  Jur. 

29,  p.  412. 
Delaware,  etc.  Canal  Co.  v.  Lee,  22  N.  J. 

L.  247,  p.  98. 
De  Rutte  v.  New  York,  etc.  Tel.  Co.,  1 

Daly  (X.  Y.),  547,  pp.  161,  162,  218,  225, 

231,  256,  272,  281,  406,  410,  411,  412. 
Deslottes  v.  Baltimore,  etc.  Tel.  Co.,  40 

La.  An.  183,  pp.  290,  416. 
Detroit  v.   Beckman,  34  Mich.  125,  p;  36. 
Dewey  v.  Detroit,  15  Mich.  307,  p.  36. 
Dickey    v.  Maine  Tel.  Co.,  46  Me.  488, 

pp.  108, 115. 
I  tiekson  v.  McCoy,  39  N.  Y.  401,  p.  104. 
Dickson  v.  Renter's  Tel.  Co.,  3  0.  P. 

Div.  1,  pp.  161,  163,  403,  404. 
Dodd  v.  Williams,  3  Mo.  App.  278,  p.  98. 


Dollbear  v.  American  Bell  Telephone 

Cq.,  126  U.  S.  147,  pp.  131,  133. 
Dolph  v.  Ferris,  7  Watts  &  S.  (Pa.)  367, 

p.  104. 
Donohue  v.   New  York,  3  Daly  (X.  Y.), 

65,  p.  36. 
Dougherty  v.  Missouri  Pac.  R.   Co.,  '.» 

Mo.  App.  478,  p.  279. 
Dryburg  v.  Telegraph  Co.,  3  Phila.  (Pa.) 

408,  p.  330. 
Dudley  Canal  Nav.  Co.  v.  Grazebiooke, 

1  Barn.  &  Adol.  59,  p.  99. 
Duncan  v.  Topham,  8  C.  B.  225,  p.  438. 
Dunlop  v.   Higgins,  1  H.  L.  Cas.  381,  p. 

438. 
Dunlop  v.  Munroe,  7  Cranch  (U.  S.),  742, 

p.  106. 
Dunn  v.  Birmingham  Canal  Co.,  L.  R.  8 

Q.  B.  42,  p.  99. 
Dunning  v.  Roberts,  35  Barb.   (N.  Y.) 

463,  p.  448. 
Durkee  v.  Vermont  Central  R.  Co.,  29 

Vt.  127,  pp.  445,  449. 
Dyer  v.  Erie  R.  Co.,  71  N.  Y.  228,  p.  112. 
Dykers  v.  Townsend,24  N.  Y.  57,  pp.  410, 

414. 

E. 

Earle  v.   DeWitt,  6  Allen   (Mass.),  520, 

p.  413. 
Eaton  v.iBoston,  etc.  R.  Co.,  51  N.  H. 

504,  p.  33. 
Elkins  v.   Boston,  etc.  R.  Co.,  19  N.  H 

337, p.  415. 
Elliott  v.  Western  Union  Tel.  Co.,  75 

Tex.  18.  pp.  321,  417. 
Ellis    v.  American    Tel.   Co.,    13   Allen 
C£m  (Mass.),  226,  pp.  162,  166, 181,  204,  228, 

234,  236,  237,  241,  246,  247. 
Elsey  v.  Postal  Tel.  Co.,3  N.  Y.  Supp 

117, p.  409. 
Elwood  v.   Western  Union  Tel.  Co.,  45 

N.  Y.  549,  pp.  171,  408,  412. 
Emerson  v.  Com.,  108  Pa.  St.  Ill,  p.  48. 
Emly  v.  Lye,  15  East,  7,  p.  415. 
Erie  v.  Schwingle,  22  Pa.  St.  388,  p.  36. 
Kvausville  v.  Morris,  87  Ind.  269,  p.  192. 
Exchange  Bank  v.  Rice,  107  Mass.  ;;7,  p. 

406. 


Falls  v.  Gaither,  9  Port.  (Ala.)  605,  p.  438. 
Fargo  v.  Michigan,  121  U.  8.  230,  pp.  8,  9. 
Farmer's,  etc.  Bank  v.  Day,  13  Vt.  36,  p. 

414. 
Farnham  v.  Camden,  etc.  R.  Co.,  55  Pa. 

St.  53,  pp.  251,  284,  286. 
Farnsworth  v.  Western  Union  Tel.  Oo. 

6  N.  V.  Supp.  735,  p.  17. 


XXVI 11 


TABLE    OF    CASES    CITED. 


Feiber  v.  Manhattan  Dist.  Tel.  Co.,  3  N. 

Y.  Supp.  116,  p.  163. 
Fenelon  v.  Butts,  53  "Wis.  344,  p.  377. 
Ferguson  v.  Davis  Co.,  57  Iowa,  601,  p. 

377. 
Ferguson  v.  Hamilton,  35  Barb.  (N.  Y.) 

427, p.  414. 
Fertilizing  Co.   v.  Hyde  Park,  97  U.  S. 

659,  p.  2. 
Filliter  v.  Pbippard,  11  Q.  B.  347,  p.  104. 
First  Nat.  Bank  v.  Western  Union  Tel. 

Co.,  30  Ohio  St.  555,  pp.  296,  306,  316. 
Flanagan  v.  Woinack,  54  Tex.  45,  p.  387. 
Fletcher  v.  Rylands,  L.  R.  1  Exch.  265, 

p.  102. 
Flint  v.  Kennedy,  33  Fed.  Rep.  820,  p. 

463. 
Flournoy  v.  Warden,  17  Mo.  435,  p.  151. 
Ford  v.  Williams,  21  How.  (U.  S.)  288,  p. 

410. 
Fowler  v.  Western  Union  Tel.  Co.,  80 

Me.  381,  pp.  163, 167, 168,  209,  212,  217, 

280,  286. 
Franklin   v.  Northwestern  Telephone 

Co.,  69  Iowa,  97,  p.  131. 
Frauenthal  v.  Western  Union  Tel.  Co., 

50  Ark.  78,  p.  187. 
Frazier  v.  Western  Union  Tel.  Co.,  84 

Ala.  4S7,  pp.  302,  338. 
Freese  v.  Tripp,  70  111.  503,  pp.  377,  388. 

G. 

Gage  v.  Stimson,  26  Minn.  64,  p.  410. 
Galpin  v.  Page,  18  Wall.  (U.S.)  350, p.  25. 
Gamewell  Fire  Alarm  Tel.  Co.  v.  New 

York,  31  Fed.  Rep.  312,  p.  73. 
Gardiner  v.  Davis,  2  Carr  &  P.  49,  p.  413. 
Gardner  v.  Newburgh,  2  Johns.  Ch.  (N. 

Y.)  162,  p.  98. 
Gas  Light,  etc.  Co.  v.  St.  Mary  Abbot's, 

15  Q.  B.  Div.  1,  p.  97. 
Gay  v.  Mutual  Union  Tel.  Co.,  12  Mo. 

App.  485,  p.  44. 
Geddis  v.  Bann  Reservoir  (Proprietors), 

3  App.  Cas.  430,  p.  97. 
Geneva  v.  Brush  Electric  Co.,  50  Hun 

(N.  Y.),  581,  pp.  39,  118. 
Gilbert  v.  Va9hon,  69  Ind.  372,  p.  192. 
Gillis  v.  Western  Union  Tel.  Co.,  61  Vt. 

461, p.  212. 
Gilman  v.  Philadelphia,  3  Wall.  (U.  S.) 

713,  p.  2. 
Gilpin  v.  Howell,  5  Pa.  St.  41,  p.  413. 
Girard  v.  Taggart,  5  Serg.  &  R.  (Pa.)  19, 

p. 414. 
Gitt  v.  Watson,  18  Mo.  274,  p.  151. 
Given  v.   Western  Union  Tel.    Co.,  24 

Fed.  Rep.  119,  pp.  291,  300. 
Globe  Printing  Co.  v.  Stahl,  23  Mo.  App. 

451,  pp.  149,  154. 


Gloucester  Ferry  Co.  v.  Pennsylvania, 

114  U.  S.  196,  p.  2. 
Godwin   v.   Francis,  39  L.  J.  (C.  P.)  121, 

p.  4:-;s. 
Goodman  v.  Gay,  15  Pa.  St.  188,  p.  104. 
Goodman  v.   Walker,  30  Ala.  482,  p.  413. 
Goodrich  v.  Chicago,  20  111.  445,  p.  36. 
Grace  v.  Adams,  100  Mass.  505,  pp.  218, 

221. 
Graham  v.  Davis,  4  Ohio  St.  362,  pp.  251, 

2S4. 
Graham  v.   Western  Union  Tel.  Co.,  10 

Am.  L.  Reg.  (N.  S.)  329,  p.  338. 
Grand  Rapids  Electric  Light,  etc.  Co.  v. 

Grand  Rapids,  etc.  Co.,  33  Fed.  Rep. 

659,  p.  50. 
Gray  v.  Boston  Gas-Light  Co.,  114  Mass. 

149,  pj  26. 
Green  v.  Reading,  9  Watts  (Pa  ),  384,  p. 

33. 
Greenland  v.  Chaplin,  5  Exch.  243,  p.  112. 
Greenshields  v.  Crawford,  9  Mees.  &  W. 

314,  p.  151. 
Griffin  v.   Colver,  16  N.   Y.  489,  pp.  306, 

316,  343. 
Griffin  v.  New  York,  9  N.  Y.  456,  p.  36. 
Griffin  v.  Williamson,  6  W.  Va.  312,  p.  36. 
Griggs  v.   Fleckenstein,  14  Minn.  81,  p. 

172. 
Grill  v.  General,  etc.  Collier  Co.,  L.  R.  1 

C.  P.  600,  p.  234. 
Grinnell  v.  Western  Union  Tel.  Co.,  113 

Mass.  299,  pp.   162,  201,  201,  214,  219, 

228,  234,  237,  428,  430. 
Grogan  v.  Adams  Exp.  Co.  (Pa.),  5  Cent. 

Rep.  298,  p.  251. 
Gulf.  etc.  R.  Co.  v.  Levy,  59  Tex.  542,  pp. 

374,  377,  3S8. 
Gulf,  etc.  R.  Co.  v.   Miller,  7  S.  W.  Rep. 

653,  pp.  293,  436. 
Gulf,  etc.  R.  Co.  v.  Wilson,  69  Tex.  739, 

pp.  166,  168,  228,  230,  241,  288,  313. 
Guiley  v.  Railway  Co.,  93  Mo.  445,  p.  127. 

H. 

Haas  v.  Myers,  111  111.  421,  pp.  438, 439. 
Hadett  v.  State,  105  Ind.  250,  p.  143. 
Hadley  v.  Baxendale,  9  Exch.  341,  pp. 

304,   310,   313,  316,  317,  325,  347,  351,  354, 

364,379,416,417. 
Hadley  v.  Western  Union  Tel.  Co.,  115 

Ind.  191,  pp.340,  419,420. 
Hall  v.  De  Cuir,  95  U.  S.  485,  p.  2. 
Hall  v.  Rood,  40  Mich.  46,  p.  31. 
Halsey  v.  Rapid  Transit  Street  R.  Co., 

20  Atl.  Rep.  859,  pp.  24,  29,  44. 
Hamilton  v.  Ganyard,  34  Barb.  (N.  Y.) 

204,  p.  347. 
Hamilton  v.  Lycoming  Ins.  Co.,  5  Pa. 

St.  339,  p.  438. 


TABLE    OF    CASES    CITED. 


XXIX 


Hamilton  v.  McPherson,28  N.  Y.  72,  p. 

393. 
Hamilton  v.  Rice,  15  Tex.  382,  p.  466. 
Hammersmith  R.  Co.  v.  Brand,  L.  R.  4 

H.  L.  171,  p.  33. 
Hannibal  v.  Missouri,  etc.  Tel.  Co.,  31 

Mo.  App.  29,  p.  92, 
Harkness  v.  Western  Union  Tel.  Co.,  73 

Iowa,  190,  pp.  209,  217,  297,  410. 
Harper  v.  Milwaukee,  30  Wis.  365,  p.  35. 
Harrington  v.  Fry,  Ryl.  &  M.  90,  p.  150. 
Harrington  v.  Fry,  8  Scott,  384,  p.  151. 
Harris'  Case,  7  L.  R.  Ch.  App.  587,  p.  438. 
Harris    v.  Western   Union  Tel.   Co.,  9 

Phila.    (Pa.)   88,   pp.  213,223,255,406, 

412. 
Harrison  v.  Collins,  86  Pa.  St.  153,  p.  172. 
Hart  v.  Direct,  etc.   Tel.   Co.,  86  N.  Y. 

633,  pp.  358,  401. 
Hart  v.  Pennsylvania  R.  Co.,  112  U.  S. 

338,  p  262. 
Hart  v.  Western  Union  Tel.  Co.,  66  Cal. 

579,  pp.  234,  353. 
Harty  v.  Railway  Co.,  95  Mo.  368,  p.  127. 
Hatch  v.  Railroad  Co.,  18  Ohio  St.  92,  p. 

20. 
Hatch  v.  Vermont,  etc.  R.  Co.,  25  Vt.  49, 

pp.  96,  99. 
Havermyer  v.   Cunningham,  35   Barb. 

(X.  Y.)  515,  p.  347. 
Hay  v.  Cohoes  Co.,  2  X.  Y.  159,  p.  103. 
Hay  v.   Leneve,  2  Shaw,  Sc.  App.  405, 

p.  112. 
Hays  v.  Kennedy,  41  Pa.  St.  378,  p.  285. 
Heard  v.   Hall,  16  Pick.  (Mass.)  457,  p. 

112. 
Hebbs'  Case,  L.  R.  4  Ecj.  9,  p.  438. 
Heiman  v.  Western  Union  Tel.  Co.,  57 

Wis.  562,  pp.  204,  265,  269. 
Heinslee  v.  Freedman,  2  Par.  Sel.  Cas. 

274,  p.  457. 
Henderson  v.  New  York,  92  U.  S.  259,  p.  3. 
Henderson  v.  Sandelur,  11  Bush  (Ky.), 

550,  p.  36. 
Henkel  v.    Pape,  40  L.  J.  Exch.  15,  pp. 

440,  441. 
Henry  v.   Pittsburg,  etc.  Bridge  Co.,  8 

Watts  &S.  (Pa.)  58,  p.  96. 

Hewitt  v.    Western   Union  Tel.   Co.,  4 
Mackey  (D.  C.)  424,  p.  44. 

Hewlett  v.  Western  Union  Tel.  Co.,  28 

Fed.  Rep.  181,  p.  213. 
Hey  v.  Pniladelphia,  81  Pa.  St.  44,  p.  36. 
Hill  v.  State,  4  Sneed  (Tenn.),  443,  p.  37. 
Hill  v.  Western  Union  TeJ.  Co.  (Ga.),  11 

S.  E.  Rep.  874,  pp.  219,  262,  267,  268. 
Hines  v.  Lockport,  50  X.  Y.  236,  p.  35. 
Hockett  v.  State,  105  Ind.  250,  p.  135. 


Hollister    v.  Union    Co.,  9   Conn.  436, 

p.  96. 
Holmes  v.  Hamburg,  47  Iowa,  348,  p.  36. 
Hooker  v.  Xew  Haven,  etc.  R.  Co.,  14 

Conn.  147,  p.  98. 
Hornby  v.  Liverpool  United  Gas  Co.,  47 

J.  P.  23,  p.  97. 
Home  v.Midland  R.  Co.,  L.  R.  7  C.  P. 

583,  pp.  309,  353. 
Household,  etc.  Ins.  Co.  v.  Grant,  L.  R. 

4  Exch.  216,  pp.  438,439. 
Howard  v.   Holbrook,  9  Bosw.  (N.  Y.) 

237,  p.  150. 
Howley  v.   Whipple,  48  N.  H.  488,  pp. 

445,  4S8,  460, 461. 
Hubbard  v.  Western  Union  Tel.  Co.,  33 

Wis.  358,  pp.  208,  217,  346,  347. 
Hubbert  v.  Borden,  6  Whart.  (Pa.)  79, 

p.  414. 
Hudson  Tel.  Co.  v.  Jersey  City,  10  East. 

Rep.  119,  p.  46. 
Hudson  River  Telephone  Co.  v.  Water- 

vliet  Turnp.,  etc.  Co.,  29  X.  Y.  State 

Rep.  694,  p.  52. 
Hudson  River  Telephone  Co.  v.  Water- 

vliet  Turnp.,  etc.  Co.,  29  X.  Y.  State 

Rep.  22.  p.  53. 
Hudson  River  Telephone  Co.  v.  Water- 

vliet  Turnp.,  etc.  Co.,  31  X.  Y.  State 

Rep.  524,  p.  54. 
Humphreys  v.  Reed,  6  Whart.  (Pa.)  435, 

p.  285. 
Humphries    v.  Armstrong   County,  56 

Pa.  St.  2U4,  p.  36. 
Hunt  v.  The  Cleveland,  6  McLean  (U. 

S.),  76,  p.  281. 
Hunter  v.  Giddings,97  Mass.  41,  p.  413. 
Huntley  v.  Whittier,  105  Mass.  391,  D. 

152. 
Hussy  v.  Ryan,  64  Md.  426,  p.  111. 
Hutcheson  v.  Blakeman,  3  Mete.  (Ky.) 

80,  p.  438. 
Hutson  v.  Xew  Yoik,  9  X.  Y.  163,  p.  35. 


I. 


Illinois  Central  R.  Co.  v.  Frankenburg, 

54  111.  88,  pp.  221,  223. 
Illsey  v.  Merriam,  7  Cush.  (Mass.)  242, 

p.  413. 
Ince,  In  re,  20  L.  T.  (X.  S.)  421,  p.  432. 
Independence  v.  Jeckel,  38  Iowa,  427, 

p.  38. 
Inglehart  v.  Thousand  Island  Hotel,  7 

Hun  (N.  Y.),549,  p.  414. 
Irwin    v.    Great    Southern    Telephone 

Co.,  37  La.  An.  63,  p.  45. 


XXX 


TABLE    OF    CASES    CITED, 


.). 


Jenkins  v.  Turner,  2  Salk.  662,  p.  104. 
Jenks  v.  Wilbrahami  11  Gray  (Mass.), 

143,  pp.  57, 172. 
Jenney   Electric,  etc.  Co.  v.   Murphy, 

115  Ind.  566,  p.  124. 
Jennings  v.  Van  Schaick,  108  N.  Y.  530, 

p.  111. 
Jetter  v.  New  York,  etc.  R.  Co.,  2  Keyes 

(N.  Y.),154,  p.  112. 
Joch  v.  Dankwardt,  85  111.  333,  p.  375. 
Johnson  v.  State,  113  Ind.  143,  pp.  143, 

145. 
Johnson  v.  Wells,  6  Xev.  224,  p.  377. 
Johnston  v.  Western  Union  Tel.  Co.,  33 

Fed.  Rep.  362.  pp.  262,  265. 
Joliet  v.  Verley,  35  111.  59,  p.  36. 
Jones  v.  .Etna  Ins.  Co.,  14  Conn.  501,  p. 

414. 
Jones  v.  Monsell,  6  Ir.  (C.  L.)  155,  pp. 

105,  106. 
Jones  v.  Xew  Haven,  34  Conn.  1,  p.  36. 
Jones    v.  Western  Union  Tel.  Co.,  18 

Fed.  Rep.  717,  p.  217. 
Jordan  v.  Overseers,  4  Ohio,  295,  p.  135. 
Joseph  v.  Knox,  3  Camp.  320,  p.  413. 
Judson  v.  Stillwell,  26  How.  Pr.  (N.  Y.) 

513,  p.  414. 
Julia  Building  Ass'n  v.  Bell  Telephone 

Co.,  88  Mo.  258,  p.  21. 
Julia  Building  Ass'n  v.  Bell  Telephone 

Co.,  13  Mo.  App.  477,  p.  44. 
Julian    v.  Western  Union  Tel.  Co.,  98 

Ind.  327,  p.  298. 


Kansas  City,  etc.  R.  Co.  v.  Simpson,  30 

Kan.  645,  p.  251. 
Karle  v.  Kansas  City,  etc.  R.  Co..  55  Mo. 

476, p.  112. 
Kavanaugh  v.  Brooklyn,  38  Barb.  (X. 

Y.)  232,  p.  37. 
Kearney  v.  Railroad  Co.,  L.  R.  5  Q.  B. 

411,  p.  278. 
Keating   Implement,  etc.  Co.  v.  Mar- 
shall Electric,  etc.  Co.,  74  Tex.  605, 

p.  468. 
Kelham  v.  The  Kensington,  24  La.  An. 

100,  p.  284. 
Kelley  v.  Milwaukee,  IS  Wis.  83,  p.  36. 
Kelly  v.  Blackstone,  147  Mass.  498,  p. 

111. 
Kemp  v.  Western  Union  Tel.  Co.  (Neb.), 

44  X.  W.  Rep.  1064,  p.  324. 
Kensington  v.  Wood,  10  Pa.  St.  93,  p.  36. 
Kiley  v.  Western  Union  Tel.  Co.,  39  Hun 

(N.  Y.),158,  p.  339. 


Kiley  v.  Western  Union  Tel.  Co.,  109  N. 

V.  231,  pp.220,  239,  465. 
Kinghoine  v.  Montreal  Tel.  Co.,  18  Up. 

Can.  (Q.  B.)  60,  pp.  339,  350,  353,  356, 

439,  458. 
Kirke  v.  Folsom,  23  La.  An.  584,  p.  284. 
Knight  v.  Gibbs.  1  Ad.  &  El.  43,  p.  172. 
Knock  v.  Metropolitan  Railway  Co.,  L. 

R.  4  C.  P.  131,  p.  97. 
Kobs  v.  Minneapolis,  22  Minn.  159,  p.  35. 
Kratz    v.    Brush    Electric    Light    Co. 

(Mich.),  46  N.  W.  Rep.  787,  pp.125, 

126,  127. 


Lafayette,  etc.  R.  Co.  v.  Shriner,  6  Ind. 

141,  p.  104. 
Lamb  v.  Camden,  etc.  R.  Co.,  46  X.  Y. 

271,  pp.  251,  284,  285. 
Land  Ins.  Co.  v.  Stauffer,  33  Pa.  St.  397, 

p.  262. 
Landsberger    v.  Magnetic  Tel.  Co.,  32 

Barb.  (X.  Y.)  530,  pp.316,  333,  346,  353, 

357,  363,  367. 
Lane  v.  Cotton,  1  Ld.  Raym.  646,  pp,  105, 

408. 
Lane  v.  Montreal  Tel.  Co.,  7  Up.  Can. 

(C.  P.)  23,  p.  345. 
Langley,  Ex  parte,  13  Ch.  Div.  110,  pp. 

466,  467. 
Lansing  v.   Smith,  8  Cow.   (N.  Y.)  146, 

p.  96. 
Lansing  v.  Toolan,  37  Mich.  152,  p.  36. 
Lassiter  v.  Western  Union  Tel.  Co.,  89 

N.  C.  334,  pp.  228,  234,  366. 
Laughlin  v.  Railroad  Co.,  43  Barb.  (X. 

Y.)  225,  p.  274. 
Lawrence  v.  Fairhaven,5  Gray  (Mass.), 

110, p.  35. 
Lawson  v.  Great  Western  Railway  Co., 

16  Q.  B.  643,  p.  97. 
Lee  v.  BIrrel,  3  Camp.  337,  p.  453.  „ 

Lee  v.  Riley,  34  L.  J.  (C.  P.)  212,  p.  104. 
Leisy  v.  Hardin,  135  U.  S.  100,  p.  3. 
Leloup  v.  Port  of  Mobile,  127  U.  S.  640, 

pp.  8,  9, 10. 
Leonard  v.  Xew  York,  etc.  Tel.  Co.,  41 

X.  Y.  544,  pp.  162,  271,  272,  307,  316,  332, 

336,  338,  396,  412,  421. 
Lerned  v.  Johns,  9  Allen  (Mass.),  421,  p. 

413. 
Levering  v.  Union  Transp.  Co.,  42  Mo. 

88,  p.  284. 
Levy  v.  Cohen,  4  Ga.  1,  p.  438. 
Levy  v.  Western  Union  Tel.  Co.,  35  Mo. 

App.  170,  p.  391. 
Lewis  v.  Browning,  130  Mass.  175,  p.  439. 


TABLE    OF    CASES    CITED. 


XXXI 


Lewis  v.  Great  Western  R.  Co.,  5  Hurl. 

&  N.  867,  pp.  220,  262,  263. 
Lin  v.  Terre  Haute,  etc.  R.  Co.,  10  Mo.  i 

App.  125,  p.  274. 
Lindenberger  v.  Beall,  6  Wheat.  (U.  S.) 

104,  p.  152. 
Lindholm  v.  St.  Paul,  19  Minn.  245,  p.  36. 
Link  v.  Clemens,  7  Blackf.   (Ind.)  480,  j 

p.  192. 
Little  v.  Chauvin,  1  Mo.  626,  p.  152. 
Little  v.  Dougherty,  11  Colo.  103,  p.  438. 
Little  v.  Hackett,  116  D.  S.  366,  p.  112. 
Littlefield  v.  Norwich,  40  Conn.  406,  p.  36. 
Little  Miami,  etc.  R.  Co.  v.  Dayton,  23 

Ohio  St.  510,  p.  20. 
Little  Rock,  etc.  R.  Co.  v.  Corcoran,  40 

Ark.  375,  p.  284. 
Little  Rock,  etc.   R.  Co.  v.  Harper,  44 

Ark.  208,  p.  284. 
Little  Rock,  etc.  R.  Co.  v.  Talbot,  39  Ark. 

523,  p.  284. 
Little  Rock,  etc.  Tel.  Co.  v.  Davis,  41 

Ark.  79,  pp.  163,  281. 
Littleton  v.  Richardson,  34  N.  H.  179, 

p.  38. 
Livingston  v.  Moore,  7  Pet.  (U.  S.)  551, 

p.  99. 
Lodge  v.  Simonton,  2  Penn.  &  W.  (Pa.) 

439,  pp.  297,359. 
Logan  v.  Western  Union  Tel.  Co.,  84  111. 

468,  p.  377. 
Lombard  v.  Chicago,  4  Biss.  (U.  S.)  460, 

p.  36. 
Loper  v.  Western  Union   Tel.  Co.,  70 

Tex.  689,  pp.  314,  376,  418,  421,  426. 
Losee  v.  Buchanan,  51  N.  Y.  476,  p.  103. 
Louisville,  etc.  R.  Co.  v.  Case,  9  Bush 

(Ky.),728,  p.  112. 
Louisville    Transfer   Co.    v.  American 
District  Telephone  Co.  (Louisville 
Chancery  Ct.),  38  Am.  Rep.  588,  note, 
p.  136. 
Love  v.  Wells,  25  Ind,  503,  p.  192. 
Lowell  v.  Boston,  etc.  R.  Co.,  23  Pick. 

Mass.)  24,  p.  38. 
Lowell  v.   Short,  4  Cush.   (Mass.)   275, 

p.  ?,8. 
Lowell  v.  Spauldirg,  4  Cush.   (Mass.) 

277, p.  38. 
Lowery  v.  Western  L'nion  Tel.  Co.,  60 

X.  Y.  198,  pp.  172,314. 
Lowrey  v.  Delphi,  55  Ind.  250,  p.  36. 
Lyke  v.  Van  Leuven,  4  Denio   (X.  V.), 

127,  p.  L04. 
Lynch  v.  Knight,  9  II.  L.  Cas.  577,  p.  :;78. 
Lynch  v.  Nurdin,  1  Ad.  &  El.  (N.  S.)  36, 
I>.  102. 


M. 


Mackay  v.  Western  Union  Tel.  Co.,  16 

Nev.  222,  pp.  180,  353,  358. 
Maclay  v.  Harvey,  90  111.  525,  p.  438. 
Macpherson  v.  Western  LTnion  Tel.  Co., 

52  N.  Y.  Super.  232,  p.  423. 
Macy  v.  Indianapolis,  17  Ind.  267,  p.  36. 
Manderschid  v.  Dubuque,  29  Iowa,  73, 

p.  36. 
Manley  v.  St.  Helens  Canal  Co.,  2  Hurl. 

&  N.  840,  p.  116. 
Manville  v.  Western  Union  Tel.  Co.,  37 

Iowa,  214,  pp.  165,  201,  208,  209,  228, 

233,  241,  245,  330,  334. 
Markel  v.  Western  Union  Tel.  Co.,  19 

Mo.  App.  80,  p.  420. 
Marr   v.  Western    Union    Tel.  Co.,   85 

Tenn.  529,  pp.  228,  283,  348. 
Marshall  v.  Wellwood,  38  X.  J.  L.  339, 

p.  103. 
Martin  v.  Brooklyn,  1  Hill  (X.  Y.),545, 

p.  36. 
Marvin  v.  Western  Union  Tel.  Co.,  15 

Chicago  Legal  News,  416,  p.  212. 
Mason  v.  Keeling,  12  Mod.  335,  p.  104. 
Massengale  v.  Western  Union  Tel.  Co., 

17  Mo.  App.  257,  pp.  266,  267,  269. 
Masters  v.  Warren,  27  Conn.  293,  p.  377. 
Matteson  v.  Noyes,  25  111.  591,  p.  458. 
Mauldin  v.  Greenville  (S.  C),  8  L.  R.  A. 

291,  pp.  72,73. 
May  v.  Western   Union    Tel.  Co.,  112 

Mass.  90,  p.  412. 
Mc Allen  v.  Western  Union  Tel.  Co.,  70 

Tex.  243.  pp.  320,  375,  378,  423. 
McAndrew  v.  Electric  Tel.  Co.,  17  C.  B. 

3,  pp.  228,  233,  234,  248,  428. 
McBlain  v.  Gross,  25  L.  T.  (N.  S.)  S04,  p. 

438. 
McColl  v.  Western  Union  Tel.  Co.,  44 

N.  Y.  Supr.  487,  pp.  306,  309,  348,  353, 

356,  367. 
McCord  v.  Western  Union  Tel.  Co.,  39 

Minn.  181,  p.  170. 
McCormack  v.  Patchin,  53  Mo.  33,  p.  36. 
McCormick  v.  Joseph,  83  Ala.  401,  p.  464. 
McCulloch    v.  Eagle  Ins.  Co.,  1   Pick. 

(Mass.)  278,  p.  439. 
McKay  v.  Draper,  27  N.  Y.  256,  p.  414. 
McLaughlin  v.  Corry,  77  Pa.  St.  109,  p. 

36. 
McMonies  v.  Mackay,  39  Barb.  (N.  Y.) 

561, p.  414. 
Mechanlcsburgh  v.  Meredith,  54  111.84, 

p.  36. 
Meidel  v.  Anthis,  71  111.  241,  p.  377. 
Memphis  Bell  Telephone  Co.  v.  Hunt 

10  Lea  (Tenn.),  456, .p.  46. 


XXX 11 


TABLE    OF    CASES    CITED, 


Mendota  v.  Fay,  1  Bradw.  (111.)  418,  p. 

36. 
Merrill  v.  Western  Union  Tel.  Co.,  78 

Me.  97,  p.  322. 
Mersey  Docks  Trustees  v.  Gibbs,  L.  R. 

1  H.  L.  93,  p.  96. 
Metropolitan    Telephone,    etc.  Co.   v. 

Colwell  Lead  Co.,  67  How.  Pr.  (N. 

Y.)  365,  p.  21. 
Messmore  v.  New  York,  etc.  R.  Co.,  40 

N.  Y.  422, p.  316. 
Michaels  v.  Xew  York,  etc.  R.  Co.,  30  N. 

Y.  564,  p.  285. 
Milan,  The,  1  Lush.  388,  p.  112. 
Milfordv.  Holbrook,9  Allen  (Mass.),  17, 

p.  38. 
Milledgeville  v.  Cooley,  55  Ga.  17,  p.  36. 
Millen  v.  Fandrye,  Poph.  161,  p.  104. 
Miller  v.  Cornwell,  71  Mich.  270,  p.  31. 
Milliken  v.  Western  Union  Tel.  Co.,  110 

N.  Y.  493,  pp.  291,  412,  425. 
Mills  v.  Brooklyn,  32  N.  Y.  489,  p.  36. 
Minnesota  Oil  Co.  v.  Collier  Lead  Co., 

4  Dill.  (U.  S.)  431,  p.  439. 
Mitchell  v.  United  States  Exp.  Co.,  46 

Iowa,  214,  p.  284. 
Monongahela    Xav.    Co.    v.    Coons,    6 

Watts.  &  S.  (Pa.)  101,  p.  96. 
Montgomery  v.  Gilner,  33  Ala.  116,  p.  36. 
Moore  v.  Minneapolis,  19  Minn.  300,  p. 

36. 
Morgan  v.  Cox,  22  Mo.  373,  p.  102. 
Morgan  v.  People,  59  111.  58,  p.  445. 
Mosey  v.  Troy,  61  Barb.  (N.  Y  )  580,  p.  35. 
Moulton  v.  Kershaw,  59  Wis.  316,  p.  439. 
Moulton  v.  Sanford,  51  Me.  127,  p.  114. 
Moulton  v.  St.  Paul,  etc.  R.  Co.,  31  Minn. 

85,  p.  251. 
Mowry  v.  Western  Union  Tel.  Co.,  51 

Hun  (X.  Y.),  126,  pp.  246,  298,  334. 
Mueller  v.  State,  76  Ind.  310,  p.  192. 
Mugler  v.  Kansas,  123  U.  S.  663,  p.  2. 
Mulholland  v.  Thomson-Houston  Elec- 
tric Light  Co.,  66  Miss.  339,  p.  469. 
Munn  v.  Illinois,  94  U.  S.  113,  pp.  136, 

143. 


N. 


Xagel  v.  Railway  Co.,  75  Mo.  653,  p.  377. 

Xashville  v.  Brown,  9  Heisk.  (Tenn.)  1, 
p.  36. 

Xational  Bank  v.  Xational  Bank,  7  W. 
Va.  544,  pp.  432,  457,  458. 

Xational  Life  Ins.  Co.  v.  Allen,  116  Mass. 
398, p.  410. 

Xebraska  City  v.  Campbell,  2  Black  (U. 
S.),591,  p.  35. 

Xebraska  Tel.  Co.  v.  York  Gas  &  Elec- 
tric Light  Co.,  37  Xeb.  284,  p.  50. 


Xegro  Boy  Case,  4  Denio  (X.  V.),  364,  p 
173. 

Xelson  v.  Wittal,  1  Barn.  &  Aid,  19,  p. 
152. 

Neptune,  The,  6  Blatchf.  (U.  S.)  194,  p. 
284. 

Nevins  v.  Rochester,  19  Alb.  L.  J.  315, 
p.  36. 

Newbury  v.  Connecticut,  etc.  R.  Co.,  25 
Vt.  377,  p.  36. 

New  Jersey  Steam  Nav.  Co.  v.  Mer- 
chants' Bank,  6  How.  (U.  S.)  344,  p. 
415. 

New  Orleans  v.  Great  Southern  Tele- 
phone, etc.  Co.,  40  La.  An.  41,  p.  47. 

New  Orlean,  etc.  R.  Co.  v.  Southern, 
etc.  Tel.  Co.,  53  Ala.  211,  p.  11. 

New  Orleans  Gas-Light  Co.  v.  Hart,  40 
La.  An.  474,  p.  51. 

New  York,  etc.  B.  Co.  v.  Central  Union 
Tel.  Co.,  21  Hun  (N.  Y.),  261,  p.  23. 

New  York,  etc.  K.  Co.  v.  Stein Drenner, 
47  N.  J.  L.  161,  p.  112. 

New  York,  etc.  Tel.  Co.  v.  Broome,  50  N. 
J.  L.  432, p.  25. 

New  York,  etc.  Tel.  Co.  v.  Dryburg,  35 
Pa.  St.  298,  op.  161,  162,  176,  213,  231, 
241,  244,  255,  281,  330,  407,  408,  412. 

New  York,  etc.  Tel.  Co.  v.  East  Orange, 
42  N.  J.  Eq.  490,  pp.  40,  41. 

Nichols  v.  Marshland,  2  Ex.  Div.  1,  p.  97. 

Nims  v.  Troy,  59  N.  Y.  500,  p.  35. 

Noblesville,  etc.  Gas  Co.  v.  Lehr,  124  Ind. 
79, p.  111. 

Northern  Central  R.  Co.  v.  Price,  29  Md. 
420, p.  102. 

Northern  Transportation  Co.  v.  Chica- 
go, 99  U.  S.  6:-l5,  p.  33. 

Norwich  v.  Breed,  30  Conn.  535,  p.  38. 


«). 


O'Brien  v.  St.  Paul,  18  Minn.  176,  p.  35. 
O'Connor  v.  Pittsburg,  18  Pa.  St.  187,  p. 

33. 
Omaha  v.  Olmstead,  5  Xeb.  446,  p.  35. 
Oregon,   etc.  R.  Co.   v.   Otis,  17  X.  Y. 

Week.  Dig.  352,  p.  460. 
Ottawa  v. Washabaugh,  11  Kan.  124,  p.  36. 
Ouatchita  Packet  Co.  v.  Aiken,  121  U.  S. 

444, p.  143. 


Pacific  Mut.  Tel.   Co.  v.  Chicago,  etc. 

Bridge  Co.,  36  Kan.  118,  p.  14. 
Packer  v.   Sunbury,  etc.   R.  Co.,  19  Pa. 

St.  218,  p.  48. 


TABLE    OF    CASES    CITED. 


XXX111 


Page  v.  Hollingsworth,  7  Ind.  317,  p. 

104. 
Paris  v.  People.  27  111.  74,  p.  37. 
Park  v.  Cohoes,  10  Hun  (N.  Y.),  531,  p. 

172. 
Parker  v.  Pitts,  73  Ind.  597,  p.  192. 
Parks  v.  Alta  California  Tel.  Co.,  13  Cal. 

422,  pp.  161,  163,  313,  325. 
Passmore  v.  Western  Union  Tel.  Co.,  78 

Pa.   St.   242,   pp.  161,  163, 166,  201,  204, 

208,  223,  228,  234,  247. 
Pasten  v.  Adams,  49  Cal.  87,  p.  172. 
Patterson  v.   Clyde,  67  Pa.   St.  500,  pp. 

284,  285. 
Patterson  v.  Colebrook,  29  N.  H.  94,  p. 

36. 
Patterson  v.  Kentucky,  97  U.  S.  501,  pp. 

135,  143. 
Peach  v.  Utica,  10  Hun  (N.  Y.),477,  p.  35. 
Pearsall  v.   Western  Union  Tel.  Co.,  44 

Hun  (N.  Y.),  532,  pp.  225,  292. 
Pegram  v.    Western  Union  Tel.  Co.,  97 

N.  C.  57,  pp.  205,  235,  285,  296. 
Pegram  v.    Western  Union  Tel.  Co.,  100 

N.  C.  28,  pp.  313,  418,  446. 
Pelton    v.  East    Cleveland    R.    Co.,   22 

Week.  L.  Bui.  67,  p.  24. 
Pennington  v.  Western  Union  Tel.  Co., 

67  Iowa,  631,  p.  392. 
Pennsylvania  Telephone  Co.,  2nre(N. 

J.),  9  Rail.  &  Corp.  L.  J.  112,  p.  141. 
Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.), 

15   Atl.    Rep.  624,  pp.  108,  110,  115,  120, 

121. 
Pensacola  Tel.  Co.    v.  Western  Union 

Tel.  Co.,  96  U.  S.  1,  pp.  3,  6,  7,  9,  11, 12, 

141. 
Pentz  v.  Stanton,  7  Wend.  (N.  Y.)  271,  p. 

415. 
People  v.  Albany,  11  Wend.  (N.  Y.)  543, 

pp.  35,  37. 
People  v.  Albany,  etc.   R.  Co.,  24  N.  Y. 

261,  p.  136. 
People  v.  American  Bell  Telephone  Co., 

117  N.  Y.  241,  pp.  156,  157. 
People  v.  Cooper,  6  Hill  (N.  Y.),  516,  p. 

37. 
People  v.  Hudson  River  Telephone  Co., 

19  Abb.  N.  Cas.  (N.  Y.),  466,  p.  146. 
People  v.  Manhattan  Gas-Light  Co.,  45 

Barb.  (N.  Y.)  136,  p.  136. 
People  v.  Morris,  13  Wend.  (N.  Y.)  325, 

p.  42. 
People  v.  Squire,  107  N.  Y.  593,  p.  42. 
People  v.  Tierney,  57  Hun  (N.  Y.),  357, 

pp.  432,  472. 
People  v.   Tierney,  10  N.  Y.  Supp.  948, 

pp.  432,  472. 
People  v.   Ward,  3  N.  Y.  Crim.  Rep.  483, 

p.  148. 
Pepper  v.   Western   Union  Tel.  Co.,  87 

Tenn.  654,  pp.  229,  237,  361,  362,  445. 


Perkins  v.  Jones,  26  Ind.  499,  p.  19<. 
Perry  v.  Mt.  Hope  Iron  Co.,  15  R.  I.  380, 

p.  439. 
Peru  v.  French,  55  111.  317,  p.  36. 
Pettis  v.  Johnson,  56  Ind.  139,  p.  26. 
Philadelphia  v.   Collins,  48  Pa.  St.  106, 

p.  35. 
Philadelphia  v.  Western  Union  Tel.  Co., 

40  Fed.  Rep.  615,  pp.  58,  471. 
Philadelphia,  etc.   R.  Co.    v.    State,  20 

Md.  157,  p.  26.  fc 
Philadelphia,    etc.    Steamship    Co.    v. 

Pennsylvania,  122  U.  S.  326,  pp.  8,  9. 
Pickard  v.  Pullman  Southern  Car  Co., 

117  U.  S.  34,  p.  2. 
Piedmont  Electric,  etc.  Co.  v.  Patter- 
son, 84  Va.  747,  p.  124. 
Pierce  v.  Drew,  136  Mass.  75,  p.  21. 
Pinckney  v.  Telegraph  Co.,  19  S.  C.  71, 

pp.  162,281. 
Piscataqua  Bridge  v.  New  Hampshire 

Bridge,  7  N.  H.  35,  p.  96. 
Pitts  v.  Mower,  18  Me.  381,  p.  413. 
Pittsburg  v.  Grier,  22  Pa.  St.  54,  p.  36. 
Playford  v.   United  Kingdom  Tel.  Co., 

L.  R.  4  Q.  B.   706,  pp.  161, 166,  403,  405. 
Pontiac  v.  Cartel,  32  Mich.  164,  p.  36. 
Pope    v.    Western    Union    Tel.    Co.,   3 

Bradw.  (111.)  283,  pp.  281,  288,  290,  292. 
Port  of  Mobile    v.   Leloup,  76  Ala.  401, 

p.  9. 
Porter  v.  Railway  Co.,  71  Mo.  83,  p.  377. 
Portland  v.  Richardson,  54  Me.  46,  p.  38. 
Postal  Telegraph  Cable  Co.  v.  Lathrop, 

131  111.  535,  pp.  360,  361,  362,  368. 
Potter  v.  Saginaw  Union  Street  R.  Co. 

(Mich.),  47  N.  W.  Rep.  217,  pp.  30,  31. 
Potter  v.  Sanders,  6  Hare,  1,  p.  438. 
Potts  v.  Whitehead,  20  N.  J.  Eq.  55,  p. 

438. 
Powell  v.  Devenny,  3  Cush.  (Mass.)  300, 

p.  172. 
Presbyterian  Church  v.   New  York,  5 

Cow.  (N.  Y.)  538,  p.  42. 
Price  v.  Ship  Uriel,  10  La.  An.  413,  p.  284. 
Proctor  v.  Jennings,  6  Nev.  83,  p.  17. 
Pugh  v.  Telephone  Co.,  27  Alb.  L.  J.  161, 

p.  146. 
Pumpelly  v.  Green  Bay  Co.,  13  Wall.  (U. 

S.)  180,  p.  33. 


H. 


Railroad  Co.  v.  Curran,  19  Ohio  St.  1,  p. 

261. 
Railroad  Co.  v.  Husen,  95  U.  S.  465,  pp. 

2,3. 
Railroad  Co.  v.  Newark,  10  N.  J.  Eq. 

352,  p.  44. 
Railway  Co.  v.  Stables,,  62  111.  313,  p. 

377. 
Raleigh,  etc.  R.  Co.  v.  Davis,  2  Dev.  & 

B.  (N.  C.)  451,  p.  99.  (C) 


XXX 1 V 


TABLE    OF    CASES    CITED. 


Ratterman  v.   Western  Union  Tel.  Co., 

u:  Q.  S.  411,  pp.  3,  8,9. 
Read  v.  St.  Louis,  etc.  R.  Co.,  60  Mo.  199, 

p.  284. 
Read  v.  Spaulding,  80  N.  Y.  630,  p.  285. 
Redpath  v.  Western  Union  Tel.  Co.,  112 

Mass.  71,  pp.  204,  218,  220,  228,  234,  236, 

248. 
Reese  v.   Western  Union  Tel.  Co.,  123 

Ind.  294,  pp.  183,  370,  374,  381,  424. 
Reg.  v.  Brightside  Bierlow,  13  Q.  B.  933, 

p.  37. 
Reg.  v.  Kenilworth,  53  E.  C.  L.  642,  p.  433. 
Reg.  v.  Midville,  4  Q.  B.  240,  p.  37. 
Reg.  v.  United  Kingdom  Electric  Tel. 

Co.,  31  L.  J.  M.  C.  166,  p.  32. 
Reid  v.  Atlanta,  73  Ga.  523,  p.  26. 
Reinhardt  v.  New  York,  2  Daly  (X.  Y.), 

243,  p.  35. 
Reliance  Lumber  Co.  v.  Western  Union 

Tel.  Co.,  58  Tex.  393,  p.  465. 
Requa  v.  Rochester,  45  X.  Y.  129,  p.  35. 
Reuter  v.  Electric  Telegraph  Co.,  6  E. 

&  Bl.  341,  p.  181. 
Reuter's  Telegram  Co.  v.   Byron,  43  L. 

J.  Ch.  661,  p.  470. 
Rex  v.  Edmonton,  1  Moo.  &  R.  24,  p.  37. 
Rex  v.  Great  Broughton,  5  Burr.  2700, 

p.  37. 
Rex  v.  Hatfield,  4  Barn.  &  Aid.  75,  p.  37. 
Rex  v.   Huggins,  2  Ld.   Raym.  1583,  p. 

104. 
Rex  v.  Leake.  5  Barn.  &  Adolph.  469,  p. 

37. 
Rex  v.  Xottlngham,  2  Lev.  112.  p.  37. 
Rex  v.  Pease,  4  Barn.  &  Adolph.  30,  p. 

32. 
Rex  v.  Ragley,  12  Mod.  409,  p.  37. 
Rex  v.  Sheffield,  2  T.  R.  106,  p.  37. 
Rex  v.  Skinner,  5  Esp.  219,  p.  37. 
Rex  v.  West  Riding  of  Yorkshire,  2  H. 

Black.  685,  p.  37. 
Reynolds  v.  Stevenson,  4  Ind.  619,  p.  192 
Rice  v.  Dwight,  2  Cush.   (Mass.)  87,  p 

221. 
Richardson  v.  Chynoweth,  26  Wis.  656 

pp.  347,  364. 
Ricket  v.  Metropolitan  R.  Co.,  L.  R.  2  H 

L.  175,  p.  33. 
RiDg  v.  Cohoes  Co.,  13  Hun  (N.  Y.),  76 

p.  35. 
Riordan  v.  Guggerty,  74  Iowa,  668,  p 

463. 
Ripley   v.   Etna   Ins.    Co.,    30  X.  Y.  136 

p.  262. 
Ritchie  v.  Bass,  15  La.  An.  668,  p.  460. 
Rittenhause   v.   Independent   Line   of 

Telegraph,  44  N.  Y.  263,  pp.  231,  259, 

281,  332,  360,  367,  397. 


Roach  v.  New  York,  etc.  Ins.  Co.,  30  N. 

Y.  546, p.  262. 
Robards  v.  Wolf,  1  Dana  (Ky.),   155,  p. 

152. 
Robbins  v.  Chicago,  4  Wall.  (U.  S.)  657, 

p.  38. 
Roberts  v.  Wisconsin  Tel.  Co.  (Wis.),  46 

N.  W.  Rep.  800,  pp.  114,  130. 
Robinson  v.   Fitchburg,  etc.   R.  Co.,  7 

Gray  (Mass.),  92,  p.  428. 
Rochester  v.  Montgomery,  9  Hun   (X. 

Y.),394,  p.  38. 
Rochester  White  Lead  Co.  v.  Rochester, 

3  X.  Y.  463,  p.  36. 
Rogers  v.  Bradshaw,  20  Johns.  (X.  Y.) 

735,  p.  98. 
Rogers  v.  Union  Stone  Co.,  130  Mass. 

581,  p.  406. 
Rogers  v.  Western  Union  Tel.  Co.,  78 

Ind.  169,  pp.  186,  192,  193,  194,  197. 
Rogers  v.  Western  Union  Tel.  Co.,  122 

Ind.  395,  p.  189. 
Rose  v.  United  States  Tel.  Co.,  3  Abb. 

Pr.  (N.  S.)  (N.  Y.)  409,  pp.  406,  411. 
Rosser  v.  Randolph,  7  Port.  (Ala.)  238, 

p.  57. 
Rothes  v.  Kinsaldy,  L.  R.  7  App.  794, 

p.  33. 
Rowell  v.  Western  Union  Tel.  Co.,  75 

Tex.  26,  pp.  378,  382. 
Rowell  v.  Williams,  29  Iowa,  210,  p.  36. 
Ruiz  v.  Norton,  4  Cal.  355,  pp.  410,  413, 

414. 
Rusch  v.  Davenport,  6  Iowa,  443,  p.  36. 
Russell  v.  Western  Union  Tel.  Co.,  3 

Dak.  315,  pp.  376,  377. 
Rylands  v.  Fletcher,  L.  R.  3  H.  L.  330,  p. 

102. 


Sadler  v.  Staffordshire,  etc.  Co.,  58  L.  J. 

(Q.  B.)  421,  p.  97. 
St.  John  v.  New  York,  3  Bosw.  (X.  Y.) 

483,  p.  38. 
St.  Joseph,  etc.  R.  Co.  v.  Dryden,  11  Kan. 

186,  p.  22. 
St.  Louis  v.  Bell  Telephone  Co.,  96  Mo. 

623,  pp.  136, 143,  144. 
St.  Louis  v.  Western  Union  Tel.  Co.,  39 

Fed.  Rep.  59,  pp.  10.  58. 
St.  Louis,  etc.  R.  Co.  v.  Thacher,  13  Kan. 

567,  p.  413. 
Salina  v.  Trosper,  27  Kan.  541,  p.  377. 
San  Antonio  City  R.  Co.  v.  Helm,  64  Tex. 

147,  pp.  378,  382. 
Sanders  v.  Stuart,  1  C.  P.  Div.  326,  p. 

353;  sub.nom.,  Saunders  v.  Stewait 

35  L.  T.  (X.  S.)  370,  p.  355. 
Saveland  v..  Green,  40  Wis.  431,  p.  445. 


TABLE    OF    CASES    CITED. 


XXXV 


Saxton  v.  St.  Joseph,  60  Mo.  153,  p.  36. 
Schnieder  v.  Missouri,  etc.   R.  Co.,  75 

Mo.  295,  p.  127. 
Schroyer  v.  Lynch,  8  Watts  (Pa.),  453, 

p.  106. 
Schuylkill  Nav.  Co.  v.  McDonough,  33 

Pa.  St.  73,  p.  96. 
Schwartz  v.  Atlantic,  etc.  Tel.  Co.,  18 

Hun  (N.  Y.),  157,  pp.  162,  217. 
Scott  v.  Bay,  3  Md.  431,  p.  103. 
Scott  v.  Dock  Co.,  11  Jur.  (N.  S.)  1108, 

p.  278. 
Scott  v.  Manchester,  1  H.  &  N.  59,  p.  97. 
Scott  v.  Shepherd,  2  W.  Black.  892,  p. 

103. 
Scranton  Electric  Light  and  Heat  Co.'s 

Appeal,  122  Pa.  St.  154,  pp.  48,  49. 
Seiler  v.  Western  Union  Tel.  Co.,  3  Am. 

L.  Rev.  777,  p.  228. 
Severin  v.  Eddy,  52  111.  189,  p.  38. 
Sewell  v.  Evans,  4  Ad.  &  El.  (N.  S.)  626, 

p.  151. 
Shaftsbury  v.  Arrowsmith,  4  Ves.  66,  p. 

457. 
Shartle   v.   Minneapolis,   17  Minn.  308, 

p.  36. 
Sheffield  v.  Central  Union  Tel.  Co.,  36 

Fed.  Rep.  164,  pp.  110,  112,  113. 
Shepard  v.  Gold  &  Stock  Tel.  Co.,  38 

Hun  (N.  Y.),  388,  p.  215. 
Shepard  V.Milwaukee  Gas-Light  Co.,  15 

Wis.  318,  pp.  347,  364. 
Shields  v.  Washington  Tel.  Co.,  9  West. 

L.  J.  233  {anno)  (1852),  pp.  346,  353. 
Shippell  v.  Norton,  38  Kan.  567,  p.  387. 
Shoolbred  v.  Charleston,  2  Bay  (S.  C), 

63,  p.  36. 
Shrunk  v.  Schuylkill  Nav.  Co.,  14  Serg. 

&R.  (Pa.)  71,  pp.  96,  98. 
Singleton  v.  Hilliard,  1  Strobh.  L.  (S.  C.) 

203,  p.  284. 
Sinnickson  v.  Johnson,  17  N.  J.  L.  129, 

pp.  98,  99. 
Slawson  v.  Loring,  6  Allen  (Mass.),  342, 

p.  415. 
Sluby  v.  Chaplin,  4  Johns.  (N.  Y.)  461, 

p.  152. 
Smaith  v.  Milwaukee,  18  Wis.  63,  p.  35. 
Smith  v.  Easton,  54  Md.  138,  pp.  458,  460. 
Smith,  Ex  parte,  13  Ch.  DIv.  110,  pp.  466, 

467. 
Smith  v.  Gold,  etc.  Tel.  Co.,  42  Hun  (N. 

Y.),  454,  p.  215. 
Smith  v.  Henderson,  9  Mees.  &  W.  798, 

p. 151. 
Smith   v.  Independent  Line   of    Tele- 
graph,    cited    Scott    &    Jarn.    Tel. 

§  412,  «,  p.  398. 
Smith  v.  Leavenworth,  15  Kan.  81,  p.  35. 
Smith  v.  St.  Joseph,  45  Mo.  449,  p.  36. 


Smith  v.  Washington,  20  How.   (U.  S.)' 

135,  p.  33. 
Smith  v.  Western  Union  Tel.  Co.,  83  Ky. 

104,  pp.  165,  208,  209,  313,  343. 
Smith  v.  Western  Union  Tel.  Co.,  84  Ky. 

664, p.  169. 
Smithson  v.  United  States  Tel.  Co.,  29* 

Md.  162,  p.  336. 
Smoot  v.  Wetumptka,  24  Ala.  112,  p.  36, 
So  Relle  v.  Western  Union  Tel.  Co.,  55 

Tex.  308,  p.  377. 
Soumet    v.  National    Express    Co.,  66 

Barb.  (N.  Y.)  284,  p.  221. 
South,  etc.  R.  Co.  v.  Henlein,  52  Ala. 

606,  p.  285. 
Southern  Express  Co.  v.  Caldwell,  21 

Wall.  (U.  S.)  270,  pp.  209,  262. 
Southern  Express  Co.  v.  Caperton,  44 

Ala.  101,  p.  263. 
Southern  Express  Co.  v.  Hess,  53  Ala. 

19,  p.  274. 
Southern  Express  Co.  v.  Moon,  39  Miss. 

822,  p.  251. 
Southern  Kansas  R.  Co.  v.  Rice,  38  Kan. 

398, p.  387, 
Southwestern  R.  Co.  v.  European,  etc. 

Tel.  Co.,  9  Exch.  363,  p.  24. 
Southwestern  R.  Co.  v.  Southwestern, 

etc.  Tel.  Co.,  46  Ga.  43,  p.  23. 
Sprague  v.  Western  Union  Tel.  Co.,  6 

Daly   (N.  Y.),  200,  pp.  241,  244,  296, 

320,  359. 
Springfield  v.  Le  Claire,  49  111.  476,  p.  36  • 
Spyer  v.  The  Mary  Belle  Roberts,  2  Saw- 
yer (U.  S.),l,  p.  284. 
Squib  Case,  2  W.  Black.  892,  p.  173. 
Squib  Case,  3  Wils.  403,  p.  103. 
Squire  v.  Western  Union   Tel.  Co.,  98 

Mass.  232,  pp,  271,  272,  276,  338,  344, 

421. 
Stack  v.  East  St.  Louis,  85  111.  377,  p.  35. 
Stackhouse  v.  Lafayette,  26  Ind.  17,  p. 

35. 
Stackpole  v.  Arnold,  11  Mass.  27,  p.  415. 
State  v.  Alburgh,  23  Vt.  262,  p.  37. 
State  v.  American,  etc.  News  Co.,  43  N. 

J.  L.  381,  pp.  19,  25. 
State  v.  Bangor,  30  Me.  341,  p.  37. 
State  v.  Barksdale,  5  Humph.  (Tenn.) 

154,  p.  37. 
State  v.  Bell  Telephone  Co.,  23  Fed.  Rep. 

539,  p.  143. 
State  v.  Bell  Telephone  Co.,  44  Am.  Rep. 

241,  p.  138. 
State  v.  Bradish,  14  Mass.  296,  p.  150. 
State  v.  Burlington,  36  Vt.  521,  p.  37. 
State  v.  Canterbury,  28  N.  H.  195,  p.  37. 
State  v.  Concord,  20  N.  II.  295,  p.  37. 
State  v.  Cumberland,  6  B.  I.  496,  pp.  36, 

37. 


XXXVI 


TABLE    OF    CASES    CITED. 


State  v.  Cumberland,  7  R.  I.  75,  p.  87. 
State  v.  Dawson,  3  Hill  (S.  C),  100,  p.  99. 
State  v.  Dover,  10  N.  H.  394,  p.  37. 
State  v.  Espinozi,  20  Nev.  209,  p.  452. 
State  v.  Flad,  23    Mo.  App.  185,  p.  43,  92. 
State  v.  Fletcher,  13  Vt.  124,  p.  37. 
State  v.  Freight  Tax,  Case  of,  15   Wall. 

(U.  S.)  232,  p.  2. 
State  v.  Fryeburg,  15  Mo.  405,  p.  37. 
State  v.  Gilmanten,  14  N.  H.  467,  p.  37. 
State  v.  Gorman,  37  Me.  451,  p.  37. 
State  v.  Hartford,  etc.  R.  Co..  39  Conn. 

538,  p.  136. 
State  v.  Jersey  City,  49  N.  J.  L.  303,  p. 

46. 
State  v.  Kittery,  5  Me.  254,  p.  37. 
State  v.  Litchfield,  58  Me.  267,  p.  452. 
State  v.  Loudon,  3  Head  (Tenn.),  263,  p. 

37. 
State  v.  Maine,  27  Conn.  641,  p  20. 
State  v.  Milo,  32  Me.  57,  p.  37. 
State  v.  Moore,  61  Mo.  279,  p.  151. 
State   v.    Murfreesboro,     11      Humph. 

(Tenn.)  217,  p.  37. 
State  v.  Nebraska  Telephone  Co.  17  Neb. 

126,  p.  136. 
State  v.  Northumberland,  44  N.  H.  628, 

p.  37. 
State  v.  Raymond,  27  N.  H.  388,  p.  37. 
State  v.  Shelbyville,  4  Sneed  (Tenn.), 

176,  p.  37. 
State  v.  Strong,  25  Me.  297,  pp.  36,  37. 
State  v.  Telephone  Co.,  36  Ohio  St.  296, 

pp.  135, 136,  138,  139. 
State  v.  Whlttingham,  7  Vt.  391,  p.  37. 
State,  etc.   Turnpike  Co.  v.   American, 

etc.  News  Co.,  43  N.  J.  L.  381,  p.  169. 
Sterling's  Appeal,  111  Pa.  St.  35,  p.  24. 
Sterling  v.  Thomas,  60  111.  264,  p.  36. 
Stevens  v.  Middlesex  Canal  Co.,  12  Mass. 

466,  pp.  96,  98. 
Stevenson  v.  McLean,  5  Q.  B.  Div.346,  p. 

439. 
Stevenson  v.  Montreal  Tel.  Co.,  16  Up. 

Can.  (Q.  B.)  530,  pp.  272,281. 
Stewart  v.  Ripon,  38  Wis.  584,  p.  377. 
Stiles  v.  Western  Union  Tel.  Co.,  (Ariz.) 

15  Pac.  Rep.  712  p.  327. 
Stocken  v.  Collen,  7  Mees.  &  W.  515,  p. 

438. 
Stone  v.  Augusta,  46  Me.  127,  p.  37. 
Stowell  v.  Flagg,  11  Mass.  364,  p.  96. 
Strasburger  v.  Western  Union  Tel.  Co., 

cited  Sedgew.  Dam.   (6th   Ed.)    pp. 

367,  441. 
Strause  v.  Western  Union  Tel.   Co.,  8 

Biss.  (U.  S.)  104,  pp.  170,  171. 
Stuart  v.  Western  Union  Tel.   Co.,  66 

Tex.  580,  pp.  370,  374,  377,  382. 
Studwell  v.  Ritch,  14  Conn.  292,  p.  104. 


StuiKes  v.  Bridgman,  11  Ch.  Div.  853,  p. 

57. 
Suburban    Light,    etc.    Co.   v.     Boston 

(Mass.),  26  N.  E.  Rep.  447,  p.  72. 
Submarine    Telegraphic    Company    v. 

DiQkson,  15  C.  B.  (N.  S.)  759,  p.  119. 
Sullivan  v.  Kuykendall,  82   Ky.  483,  pp. 

147,  153. 
Susquehanna  Canal  Co.   v.   Wright,  9 

Watts  &  S.  (Pa.)  9,  p.  96. 
Sutton  v.  Clark,  6  Taunt.  29,  pp.  32,  96. 
Swansey  v.,Chase,  16  Cray  (Mass.),  303, 

p.  38. 
Sweetland  v.   Illinois,  etc.  Tel.  Co.,  27 

Iowa,  433,  pp.  161,  201,202,208,209,210, 

228,  230,  233,  235,  282, 428. 
Swindler  v.  Hillard,  2  Rich.    L.   (S.  C.) 

286,  pp.  251,  284. 

T. 

Taber  v.  Cannon,  8  Mete.  (Mass.)  456,  p. 

415. 
Taggart  v.  Newport  Street   R.   Co.,  19 

Atl.  Rep.  326,  p.  51. 
Taintor  v.  Prendergast,  3  Hill   (N.  Y.), 

72, p.  413. 
Tallehasse  v.  Fortune,  3  Fla.  19,  pp.  35, 

36. 
Tayloe  v.  Merchants'   Fire  Ins.  Co.,  9 

How.  (U.  S.)  390,  p.  438. 
Taylor  v.  Steamboat  Co.,  20  Mo.  254,  p. 

153. 
Taylor  v.  The  Robert  Campbell,  20  Mo. 

254,  p.  153. 
Teachout  v.  Des  Moines,  etc.  R.  Co.,  75 

Iowa,  722,  p.  51. 
Telegraph  Co.  v.  Griswold,  37  Ohio  St. 

301,   pp.  161,  162,  165,208,209,281,283, 

363. 
Telegraph  Co.  v.  Massachusetts,  125  U. 

S.  530,  p.  141. 
Telegraph  Co.  v.  Schotter,  71  Ga.  560,  pp. 

446,  448. 
Telegraph  Co,  v.  Texas,  105  U.  S.  460,  pp. 

3,8,9,141. 
Telephone  Cases,  126  U.  S.  1,  p.  131. 
Ten  Eyck  v.  Delaware,  etc.  Canal  Co., 

18  N.  J.  L.  200,  p.  99. 
Terre  Haute,  etc.  R.  Co.  v.  Stockwell, 

118  Ind.  98,  p.  464. 
Texas  Central  R.  Co.  v.  Burnett,  61  Tex. 

638,  pp.  378,  382. 
Thomas  v.  Western  Union  Tel.  Co  ,  100 

Mass.  156,  pp.  108, 115. 
Thomas   Smith,   In  re  7  L.  R.  Ir.  286,  p. 

457. 
Thompson  v.  Western  Union  Tel.  Co., 

32  Mo.  App.  191,  pp.  193,  194. 
Thompson  v.  Western   Union  Tel.  Co., 

106  N.  C.  549,  pp.  229,  235,  241,  328,  370, 

374,  378. 


TABLE    OF    CASES    CITED. 


XXXVH 


Thompson  v.  Western  Union  Tel.  Co., 

107  N.  0.  449,  pp.  241,  370,  374,  375,  385, 

436. 
Thompson  v.  Western  Union  Tel.  Co., 

64  Wis.  531,  pp.  229,241. 
Thorogood  v.  Bryan,  8  C.  B.  114,  p.  111. 
Thorp  v.  Philbin,  2*N.  Y.  St.  Rep.  732,  p. 

464. 
Thorpe  v.  Rutland,  etc.  R.  Co.,27Vt. 

140, p.  42. 
Thurn  v.  Alta  California  Tel.  Co.,  15  Cal. 

472,  pp.  271,  421. 
Tiffany   v.  United    State   Illuminating 

Co.,  67  How.  Pr.  (N.  Y.)  73,  p.  24. 
Tissot  v.  Great  Southern  Tel.  etc.  Co., 

39  La.  An.  996,  p.  46. 
Topeka  v.  Tuttle,  5  Kan.  311,  p.  35. 
Townsend's  Case,  L.  R.  13  Eq.  148,  p. 

438. 
Transfer  Co.  v.  Kelly,  36  Ohio  St.  86,  p. 

112. 
Trask  v.  Insurance  Co.,  29  Pa.  St.  198, 

p.  262. 
Tremaine  v.  Cohoes  Co.,  2  N.  Y.  163,  p. 

103. 
Trevor  v.  Wood,  36  N.  Y.  307,  pp.  437,438. 

439. 
True  v.  International  Tel.  Co.,  60  Me.  9, 

pp.  165,  201,  203,  204,  212,  217,  241,  334, 

338,  345. 
Tucker  Manufacturing  Co. v.  Fairbanks, 

98  Mass.  101,  p.  415. 
Tufts  v.  Atlantic  Tel.  Co.,  23  N.  E.  Rep. 

844, p.  473. 
Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa, 

458,  pp.  209,  273,  274,  281,  336,  436. 
Tutein  v.  Hurley,  98  Mass.  211,  p.  172. 
Tutt  v.  Brown,  5  Litt.  (Ky.)  1,  p.  413. 
Tyler  v.  Western  Union  Tel.  Co.,  60  111. 

421,  pp.161,  162,  165,  208,222,231,246, 

250,  252,  256,  281,  362. 


Union  Express  Co.  v.  Graham,  26  Ohio 

St.  595,  pp.  251,  284. 
Union  Rubber  Co.  v.  Tomlinson,  1  E.  D. 

Sm.  (N.  Y.)  364,  p.  414. 
United     Electric     R.    Co.    v.    Shelton 

(Tenn.),  14  S.  W.  Rep.  863,  p.  116. 
United  States  v.  Babcock,  3  Dill.  (U.  S.) 

567,  pp.  152,  456,  458,  460. 
United  States  Express  Co.  v.  Backman, 

28  Ohio  St.  744,  pp.  251,  284. 
United  States  UluminatingCo.  v.  Grant, 

7  N.  Y.  State  Rep.  788,  p.  72. 
United  States  Illuminating  Co.  v.  Hess, 

19  N.  Y.  State   Rep.  *83,  p.  71. 


United  States  Tel.  Co.  v.  Gildersleve,  29 
Md.  232,  pp.  201,  202,  204,  205,  219,  224, 
228,  282,  296,  316,  353,  415,  428. 

United  States  Tel.  Co.  v.  Wenger,  55  Pa. 
St.  262,  pp.  280,  281,  296,  333,  364,  430, 
431. 

United  States  Tel.  Co.  v.  Western  Union 
Tel.  Co.,  56  Barb.  (N.  Y.)  46,  pp.  198, 
211,  271,  421. 


Van  Bergen  v.  Van  Bergen,  3  Johns.  Ch. 

(X.  Y.)  387,  p.  58. 
Van   Pelt  v.  Davenport,  42  Iowa,  308, 

p.  35. 
Van  Schoick  v.  Delaware,    etc.  Canal 

Co.,20N.  J.  L.  249,  p.  98. 
Vaugh  v.  Taff  Vale  R.  Co.,  5  Hurl.  &  N. 

679,  p.  32. 
Venlin  v.  Robertson,  10  Sc.  Sess.  Cas. 

(3d  Series),  35,  p.  440. 
Vermont,  etc.  R.  Co.  v.  Clayes,  21  Vt.  30, 

p.  414. 
Vicars  v.  Wilcox,  8  East,  1,  p.  172. 
Vincent  v.  Chicago,  etc.  R.  Co.,  49  111. 

33,  p.  136. 
Violet  v.  Powell,  10  B.  Mon.  347,  p.  413. 


W. 

Wabash,  etc.  R.  Co.  v.  Illinois,  118  U.  S. 

557,  p.  2. 
Wabash,  etc.  R.  Co.  v.  Shacklet,  105  111. 

364,  p.  112. 
Wadell,  In  re,  8  Jur.  (N.  S.)  181,  p.  432. 
Wadsworth  v.  Western  Union  Tel.  Co., 

86  Tenn.  695,  pp.  370,  376,  383,  406. 
Waite  v.  Northeastern  R.  Co.,  El.  Bl.  & 

El.  728,  p.  112. 
Wallace  v.  New  York,  2  Hilt.  (N.  Y.)  440, 

p.  35. 
Walling  v.  Michigan,  116  U.  S.  446,  p.  2. 
Wann    v.  Western  Union  Tel.  Co.,  37 

Mo.  472,  pp.  161,  163,  202,  204,  228,  234, 

246. 
Ward  v.  Atlantic,  etc.  Tel.  Co.,  71  N.  Y. 

81,  p.  117. 
Warden  v.  Burnham,  8  Vt.  390,  p.  414. 
Washburn  v.  Fletcher,  42   Wis.  152,  p. 

438. 
Washington,  etc.  Tel.  Co.  v.  Hobson,  15 

Gratt.  (Va.)  122,  pp.  163,  281,  333,  396, 

397. 
Watson  v.  Baker,  71  Tex.  739,  p.  437. 
Watson  v.  Montreal  Tel.  Co.,  5  Mont.  L. 

N.  87,  p.  412. 
Weeks  v.  Milwaukee,  10  Wis.  242,  p.  35. 
Weet  v.  Brockport,  16  X.  V.  L61,  p.  35. 


XXX  VI 11 


TABLE    OF    CASES    CITED. 


Weiden  v.  Brush  Electric  Light  Co.,  73 

Mich.  268,  pp.  127, 128. 
Weightaian  v.  Washington,  1  Black  (U.  j 

S.),39,  p.  35. 
AYelsh  v.  Railroad  Co.,  10  Ohio  St.  65, 

p.  251. 
Wendel  v.  Troy,  4  Keyes  (K.  Y.),  261,  | 

p.  35. 
Wertheimer  v.  Pennsylvania  R.  Co.,  11 

Blatchf.  (U.  S.)  194,  p.  281. 
"West  v.  Western  Union  Tel.  Co. ,39  Kan. 

93,  pp.  376,  377,  387,  406. 
West  Boyleston  v.  Mason,  102  Mass.  341, 

p.  38. 
Western  Tel.  Co.  v.  Penniman,  21  How.  i 

(U.  S.)  460,  p.  12. 
Western  Union  Tel.  Co.  v.  Adams,  87 

Ind.  598,  pp.  186,  203,  211. 
Western   Union  Tel.  Co.  v.  Adams,  75 

Tex.  531,  pp.  295,  370,  381,  407,  421. 
Western    Union    Tel.  Co.  v.  Alabama 

State  Board,   132  U.  S.  472,  pp.  7,  9, 

472. 
Western    Union    Tel.  Co.  v.   Allen,   66 

Miss.  549,  pp.  198,  420. 
Western   Union  Tel.  Co.  v.  American 

Union  Tel.  Co.,  9  Biss.   (U.  S.)   72, 

p.  10. 
Western  Union  Tel.  Co.  v.  Andrews,  78 

Tex.  305,  p.  302. 
Western  Union  Tel.  Co.  v.  Atlantic,  etc. 

Tel.  Co.,  5  Nev.  102,  pp.  3,  6. 
Western  Union  Tel.  Co.  v.  Atlantic,  etc. 

Tel.  Co.,  7  Biss.  (U.  S.)  367,  p.  23. 
AYestern  Union  Tel.  Co.  v.  Axtell,  69  Ind. 

199,  pp.  186,  423. 
Western  Union  Tel.  Co.  v.  Baltimore, 

etc.  Tel.  Co.,  22  Fed.  Rep.  133,  p.  10. 
Western  Union  Tel.  Co.  v.  Blanchard, 

68  Ga.  299,  pp.  161,  165,  204,  208,  250,  \ 

253,  332,  350. 
Western  Union  Tel.  Co.  v.  Board    of 

Electric  Control,  38  Fed.  Rep.  552, 

p.  42. 
Western  Union  Tel.  Co.  v.  Broesche,  72 

Tex.  654,  pp.  166,  241,  288,  299,  313,  370, 

386,  418. 
Western  Union  Tel.  Co.  v.  Brown,  108 

Ind.  538,  pp.  183,  419,  424. 
Western  Union  Tel.  Co.  v.  Brown,  71 

Tex.  723,  pp.  320,  380. 
Western  Union  Tel.  Co.  v.  Buchannan, 

35  Ind.  429,  pp.  186,  201,  203,  204,  211, 

226,  235,  429. 
Western  Union  Tel.  Co.  v.  Carew,  15 

Mich.   525,  pp.  161,  162,  165,  202,  204, 

218,  219,  228,  249,  272,  281. 
Western  Union  Tel.  Co.  v.  Catchpole, 

White  &  W.  (Tex.)  268,  p.  234. 


Western    Union  Tel.  Co.  v.  Cobbs,  47 

Ark.  344,  pp.  262,  266. 
Western  Union  Tel.  Co.  v.  Cohen, 73  Ga. 

522,  p.  210. 
Western    Union    Tel.    Co.    v.    Collins 

(Kan.),  25  Pac.  Rep.  187,  pp.  338,  368, 

432. 
Western  Union  Tel.  Co.  v.  Common- 
wealth, 110  Pa.  St.  405,  p.  471. 
Western    Union    Tel.  Co.  v.  Cooledge 

(Ga.),  12  S.  E.  Rep.  264,  pp.  180,  266. 
Western  Union  Tel.  Co.  v.  Cooper,  71 

Tex.  507,  pp.  288,  289,  290,  293,  295,  370, 

379,  382,  384,  385,  421,  429,  436. 
Western  Union  Tel.  Co.  v.  Crall,  38  Kan. 

679,  pp.  204,  206,  285,  343. 
Western  Union  Tel.  Co.  v.  Dozier,  62 

Miss.  288,  p.  178. 
Western  Union  Tel.  Co.  v.  Dubois,  128 

111.  248,   pp.  169,  248,  330,  337,  409,  422. 
Western  Union  Tel.  Co.  v.  Dunfield.ai 

Col.  335,  pp.  263,  267. 
Western    Union  Tel.  Co.  v.  Edsall,  63 

Tex.  668,  pp.  166,  222,  313,  359,  360. 
Western  Union  Tel.  Co.  v.  Eyser,  2  Col. 

141,  pp.  108,  110,  116. 
Western  Union  Tel.  Co.  v.  Fatman,  73 

Ga.  285,  p.  367. 
Western   Union  Tel.  Co.  v.  Feegles,  75 

Tex.  537,  p.  297. 
Western  Union  Tel.  Co.  v.  Fenton,  52 

Ind.  1,  pp.  190,  201,  208,  213,  228,  240, 

241,  242,  324,  406. 
Western  Union  Tel.  Co.  v.  Ferguson,  57 

Ind.  495,  pp.  186, 197,  423. 
Western  Union  Tel.  Co.  v.  Fontaine,  58 

Ga.  433,  pp.  163,201,204,205,208,  217, 

231. 
Western  Union  Tel.  Co.  v.    Foster,  64 

Tex.  220,  pp.  177,  226. 
Western  Union  Tel.  Co.  v.  Goodbar,  7 

South.  Rep.  214,  pp.  207,  286. 
Western  Union  Tel.  Co.  v.  Gougar,  84 

Ind.  176,  p.  186. 
Western  Union  Tel.  Co.  v.  Graham,  1 

Colo.  230,  pp.  201,  202,203,208,  240,241, 

243,  280,  306,  344. 
Western  Union  Tel.  Co.  v.  Griswold,  37 

Ohio  St.  301,  pp.  161,  165,  209,  281,  283, 

362. 
Western  Union  Tel.  Co.  v.  Hall,  124  U. 

S.  444,  pp.  340,  365. 
Western  Union  Tel.  Co.  v.  Hamilton,  50 

Ind.  181,  pp.  186, 190, 191. 
Western  Union  Tel.  Co.  v.  Harding,  103 

Ind.  505,  pp.  300,  423. 
Western  Union  Tel.  Co.    v.  Harris,  17 

111.  App.  347,  p.  337. 
Western  Union  Tel.  Co.  v.  Hearn,  77 

Tex.  83,  p.  228. 


TABLE    OF    CASES    CITED. 


XXXIX 


Western  Union  Tel.  Co.  v.  Henderson, 

89  Ala.  510,  pp.  214,  241,269,287,290, 

370,  374,  430. 
Western  Union  Tel.   Co.    v.  Heyer,  22 

Fla.  637,  p.  367. 
Western  Union  Tel.  Co.    v.    Hope,  11 

Bradw.  (111.)  289,  p.  165. 
Western  Union  Tel.  Co.  v.  Hopkins,  49 

Ind.  227,  pp.  339,  419. 
Western  Union  Tel.  Co.  v.  Howell,  38 

Kan.  685,  pp.  204,  207. 
Western  Union  Tel.  Co.    v.   Jones,  95 

Ind.  228,  pp.  262,  266. 
Western  Union  Tel.  Co.  v.  Jones,  116 

Ind.  361,  p.  183. 
Western  Union  Tel.  Co.  v.  Kendzora,  77 

Tex.  257,  pp.  302,  391. 
Western  Union  Tel.  Co.  v.  Kilpatrick, 

97  Ind.  42,  p.  427. 
Western  Union  Tel.  Co.  v.  Kinney,  106 

Ind.  468,  pp.  419,  423. 
Western  Union  Tel.  Co.  v.  Kirkpatrick, 

76  Tex.  217,  pp.  353,  355,  380. 
Western   Union  Tel.  Co.  v.  Landis,  12 

Atl.  Rep.  467,  pp.  256,  337. 
Western  Union  Tel.  Co.  v.  Levi,  47  Ind. 

552, p.  121. 
Western  Union  Tel.  Co.  v.  Lindley,  62 

Ind.  371,  pp.  186,  191. 
Western  Union  Tel.  Co.   v.  Longwill,  21 

Pac.  Rep.  339,  pp.  262,  322,  391,  406. 
Western  Union  Tel.  Co.    v.    Magnetic 

Tel.  Co.,  21  How.  (U.  S.)  456.  p.  12. 
Western   Union  Tel.  Co.    v.  Martin,  9 

Bradw.  (111.)  587,  p.  353 
Western  Union  Tel.  Co.  v.  Massachu- 
setts, 125  U.  S.  530,  pp.  8, 9,  59. 
Western  Union  Tel.  Co.    v.   Mayer,  28 

Ohio  St.  521,  p.  9. 
Western  Union  Tel.  Co.  v.  McDaniel, 

103  Ind.  294,  p.  400. 
Western  Union  Tel.  Co.  v.  McGuire,  104 

Ind.  130,  p.  213. 
Western  Union  Tel.  Co.  v.  McKibben, 

114  Ind.  511,  pp.  262,  266,  291,  324,  420. 
Western  Union  Tel.  Co.  v.  Meek,  49  Ind. 

53,  pp.  201,  203,  211,  419. 
Western  Union  Tel.  Co.  v.  Meredith,  95 

Ind.  93,  pp.  208,  262. 
Western  Union   Tel.  Co.    v.   Meyer,  61 

Ala.  158,  p.  173. 
Western   Union  Tel.  Co.  v.  Moore,  76 

Tex.  66,  p.  379. 
Western  Union  Tel.  Co.  v.   Morris,  77 

Tex.  173,  pp.  388,  392. 
Western  Union  Tel.  Co.  v.  Mossier,  95 

Ind.  29,  p.  423. 
Western  Union  Tel.  Co.  v.  Munford,87 
Tenn.  190,  pp.  163,  272,  2  75. 


Western  Union  Tel.  Co.  v.  Neill,  57  Tex. 

283,  pp.  161,  204,  205,  217. 
Western  Union  Tel.  Co.  v.  New  York, 

38  Fed.  Rep.  552,  pp.  6,  61. 
Western  Unirn  Tel.  Co.  v.  Pendleton, 

122  U.  S.  347,  pp.  3,  8, 186, 191,  419. 
Western  Union  Tel.  Co.    v.   Pennsyl- 
vania, 128  U.  S.  39,  p.  9. 
Western  Union  Tel.  Co.  v.  Philadelphia, 

12  Atl.  Rep.  144,  p.  60. 
Western  Union  Tel.  Co.    v.    Rains,  63 

Tex.  27,  p.  262. 
Western  Union  Tel.  Co.  v.  Reed,  96  Ind. 

195,  p.  189. 
Western  Union  Tel.  Co.  v.  Reid,  83  Ga. 

401,  p.  333. 
Western  Union  Tel.  Co.  v.  Reynolds,  77 

Va.  173,  pp.  182,  204,  367. 
Western  Union  Tel.  Co.  v.  Rich,  19  Kan. 

517,  p.  22. 
Western  Union  Tel.  Go.  v.  RichmaD,  8 

Atl.  Rep.  171,  p.  336. 
Western  Union  Tel.  Co.  v.  Richmond, 

26  Gratt.  (Va.)  1,  p.  9. 
Western  Union  Tel.  Co.  v.   Schotter,  71 

Ga.  760,  pp.  161,  208. 
Western  Union  Tel.  Co.  v.  Scircle,  103 

Ind.  227,  p.  298. 
Western  Union  Tel.  Co.  v.  Sheffield,  71 

Tex.  570,  pp.  296,  297,  362,  400. 
Western  Union  Tel.  Co.  v.  Short,  53  Ark. 

434,  pp.  250,  281,  319. 
Western  Union  Tel.  Co.  v.  Simpson.  73 

Tex.  422,  pp.  257,  370,  386,  390,  431. 
Western  Union   Tel.    Co.  v.  Smith,   76 

Tex.  253,  pp.  321,  427. 
Western  Union  Tel.  Co.  v.  State,  55  Tex. 

314,  p.  9. 
Western  Union  Tel.  Co.  v.  Steele,  108 

Ind.  163,  pp.  183,  423. 
Western  Union  Tel.  Co.  v.  Stevenson, 

128  Pa.  St.  442,  pp.  228,  257,  464. 
Western  Union  Tel.  Co.  v.   Swain,  109 

Ind.  405,  p.  183. 
Western  Union  Tel.  Co.  v.  Taylor.  84 

Ga.  408,  p.  198. 
Western  Union  Tel.  Co.  v.  Tyler,  74  111. 

1G8,  pp.  229,  231,  250,  252,  256. 
Western  Union  Tel.  Co.   v.  Trissal,  98 

Ind.  566,  p.  291. 
Western  Union  Tel.  Co.  v.  Valentine,  18 

111.  App.  57,  pp.  296,  322. 
Western  Union  Tel.  Co.  v.  Ward,  23  Ind. 

377,  pp.  186, 188. 
Western  Union  Tel.  Co.  v.  Way,  83  Ala. 

542,  pp.  241,  266,  268,  271,* 308,  335,  339, 

367,  388,  428,  440,  465. 
Western  I'nion  Tel.  Co.  v.  Williams,  86 

Va.  696,  p.  21. 


xl 


TABLE    OF    CASES    CITED. 


Western  Union  Tel.  Co.  v.  Wilson,  108 

Ind.  308,  pp.  183,  424. 
Western  Union  Tel.  Co.    v.  Yopst,  118 

Ind.  248,  pp.  169,  193,  194,  198,  26T,  424. 
Western   Union  Tel.  Co.  v.   Young,  93 

Ind.  118,  pp.  203,  211. 
Western  I'nion  Tel.  Co.  v.   Young,  77 

Tex.  245,  p.  292. 
Westfield  v.  Mayo,  122  Mass.  100,  p.  38. 
Wheat  v.  Cross,  31  Md.  99,  p.  438. 
Whilden    v.  Merchants',  etc.  Bank,  64 

Ala.  1,  pp.  433,  459. 
White    v.    Western   Union  Tel.   Co.,    5 

McCrary  (U.  S.),  103,  pp.  204,  206. 
White  v.   Western  Union    Tel.  Co.,  14 

Fed.  Rep.  710,  pp.  210,  282. 
Whitehouse  v.  Birmington  Canal  Co., 

25  L.  J.  (Exch.)  27,  p.  96. 
Whitehouse  v.  Fellows,  10  C.  B.  (N.  S.) 

675,  p.  32. 
Whitesides  v.  Russell,  8  Watts  &  S.  (Pa.) 

44, p.  284. 
Whitfield  v.  Le  Despencer,  Cowp.  754, 

p.  105. 
Whitworth  v.  Erie  R.   Co.,  87  N.  Y.  413, 

pp.  284,  285. 
Wiggins  v.  Boddington,  3  Carr.  &  P.  544, 

p.  116. 
Wiggins  v.   Hathaway,  6  Barb.  (N.  Y.) 

632,  p.  106. 
Williams  v.  City  Electric  Street  R.  Co., 

41  Fed.  Rep.  556,  p.  51. 
Williams  v.  New  Albany  R.  Co.,  5  Ind. 

Ill, p.  104. 
Williams  v.  Reynolds,  18  Eng.  Common 

L.  493,  p.  347. 
Williams  v.   Robbins,  16  Gray  (Mass.), 

77,  p.  415. 
Willis  v.  Erie  Tel.,  etc.  Co.,  37  Minn.  347, 

p.  45. 
Wilson  y.   Brett,  11  Mees.  &  W.  118,  p. 

234. 
Wilson  v.  Great  Southern  Tel.  Co.,  41  La. 

An.  1041,  pp.  108, 112,  116. 
Wilson  v.  Gulf,  etc.  R.  Co.,  69  Tex.  739, 

p.  370. 
Wilson  v.  Holt,  83  Ala.  528,  p.  464. 


Wilson  v.  New   York,  1  Denio   (N.  Y.), 

595.  p.  36. 
Wilson  v.  Railroad  Co.,  31  Minn.  481,  p. 

445. 
Wilson  v.  Watertown,  5  N.  Y.  S.  C.  (T.  & 

C.)  579,  p.  35. 
Winter  v.  New  Y'ork,  etc.  Tel.  Co.,  51 

N.  J.  L.  83,  p.  25. 
Wisconsin  Telephone  Co.  v.  Oshkosh, 

62  Wis.  32,  pp.  130,  157. 
Woburn  v.  Boston,  etc.  R.  Co.,  109  Mass. 

283.  p.  38. 
Woburn    v.    Henshaw,    101    Mass.  193, 

p.  38. 
Wolf  v.  Western  Union  Tel.  Co.,  62  Pa. 

St.  83,  pp.  161, 202,  204,  219, 220, 261, 262. 
Wolfe  v.  Erie  Tel.  Co.,  33  Fed.  Rep.  320, 

pp.  108, 113,  114. 
Wolfe  v.  Missouri  Pacific  R.  Co.,  97  Mo. 

473, p.  147. 
Wolfskehl  v.  Western  Union  Tel.  Co., 

46  Hun  (N.  Y),  502,  p.  408. 
Womack  v.  Western  Union  Tel.  Co.,  58 

Tex.  176,  pp.  166,  204,  220,  221,  230,  234, 

248. 
Woods  v.  Boston,  121  Mass.  327,  p.  111. 
Woods  v.  Miller,  55  Iowa,  168,  pp.  452, 

453. 
Worster  v.  Proprietors,  16  Pick.  (Mass.) 

541, p.  112. 
Wyandotte  v.  White,  13  Kan.  191,  p.  35. 
Wyman  v.  Leavitt,  71  Me.  227,  p.  377. 


Y. 


Yates  v.  Southwestern  Brush,  etc.  Co., 

40  La.  An.  467,  p.  105. 
Yick  Wo  v.  Hopkins,  118  U.  S.  356,  p.  2. 
Y'oung  v.  Western   Union  Tel.  Co.,  107 

N.  C.  370,  pp.  298,  370,  373,  407. 
Young  v.  Western  Union  Tel.  Co.,  38  N. 

Y.  Supr.  390,  p.  262. 
Young  v.  Western  Union  Tel.  Co.,  65  N. 

Y.  163,  pp.  204,  218,  223,  228,  268. 
YToung  v.  Y'armouth,  9  Gray    (Mass.), 

386,  p.  34. 


CHAPTER   I. 

RIGHTS    <>!•'    TELEGRAPH    COMPANIES. 

Section. 

1.  A>  Instruments  of  [uterstate  Commerce. 

2.  Provisions  of  the  Revised  Statutes  of  the  United  States. 

3.  Validity  and  Effeet  of  this  Statute  in  General. 

4.  Effect  of  this  Statute  in  Exempting  Telegraph  Companies  from 

State  Taxation  and  Control. 
.">.     Invalidity   of  State  Statute   Prescribing   Priorities   of  Interstate 

Messages. 
<>.     Limit  of  State  Power  of  Taxation:  Property  Taxable — Interstate 

Business  not. 

7.  License  Tax  for  the  Privilege  of  Doing  Business. 

8.  Xo  Exclusive  Privilege  of  Establishing  Line. 

!).     State  Grant  of  Exclusive  Privilege  to  a  Particular  Company. 

10.  Exclusive  Privileges  under  United  States  Patents. 

11.  Right   to    Extend    Line  upon   Interstate  Bridge  over  Navigable 

Waters. 

12.  Not  Allowed  to  Interfere  with  the  Opening  of  the  Draw-Span, 

13.  Statutory  Protection  of  Poles  and  Wires. 

14.  Damages  for  Cutting  Such  Wires. 

\N  1.  As  Instruments  of  Interstate'  Commerce. — 
Under  the  Constitution  of  the  United  States  Con- 
gress possesses  the  power  to  regulate  commerce 
among  the  several  States.1  The  present  doctrine 
of  the  Supreme  Court  of  the  United  States  is  that 
this  grant  of  power  to  Congress  excludes  its  ex- 
ercise by  the  States,  so  that  where  Congress  lias  not 
exercised  the  power  its  non-action  is  deemed  equiv- 
alent to   a   declaration   thai  commerce  in  the  given 

1  Const.  U.  S.,  art.  1,  §8,  el.  3. 

(1) 


2  RIGHTS    0¥    TELEGRAPH    COMPANIES. 

particular  should  be  free.1  So  jealous  is  the  Fed- 
eral  judiciary  about  protecting  in  Congress  a  power 
which  that  body  has  seldom  seen  fit  to  exercise, 
that  it  holds  that  every  interference  by  the  States 
with  the  instruments  of  interstate  commerce, 
whether  by  way  of  regulation  or  taxation,  except 
9uch  as  may  fall  within  what  is  called  the  police 
power,  is  void.  This  police  power  is  perhaps  the 
vaguest  and  worst  defined  governmental  power 
which  exists,  ft  is  said  by  the  Supreme  Court  of 
the  United  States  to  be  the  power  of  the  State  to 
protect  the  lives,  limbs,  health  and  morals  of  its 
citizens.2  In  short,  it  is  the  power  of  self-preserva- 
tion. Roughly  speaking,  it  may  be  said  that  Con- 
gress* possesses  none  of  it.  and  that  the  States  pos- 
sess all  of  it.  This  police  power  of  the  States, 
wherever  it  touches  the  boundaries  of  Federal 
power,  or  wherever  it  is  so  exerted  as  to  raise  what 
arc  termed  "Federal  questions,"  is  bounded  only  by 
those  conceptions  of  what  is  reasonable  and  just 
which  prevail  at  the  particular  hour  in  the  minds  of 
the  members  of  the  highest  Federal  judicial  tri- 
bunal. But,  whatever  may  be  its  nature  or  extent, 
the  authority  of  Congress    over   the    regulation    of 

1  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196;  Brown  v. 
Houston,  114  U.  S.  622;  Pickard  v.  Pnllman  Southern  Car  Co.,  117  U.  S. 
34;  Wabash,  etc.  R.  Co.  v.  Illinois,  118  U.  S.  557;  Walling  v.  Michigan, 
116  U.  S.  446;  Corson  v.  Maryland,  120  U.  S.  502;  Case  of  the  State 
Freight  Tax.  15  Wall.  (U.  S.)  232;  Cooley  v.  Port  Wardens,  12  How. 
I  3.)  299;  Oilman  v.  Philadelphia,  3  Wall.  (U.  S.)  713;  Hall  v.  De 
Quir,  95  U.  S.  485,  407;  Railroad  Co.  v.  Husen,  95  U.  S.  465. 

•-'  Mugler  v.  Kansas,  123  U.  S.  663;  Butchers'  Union  v.  Crescent  City 
Co.,  Ill  U.  S.  746;  Tick  Wo  v.  Hopkins,  118  U.  S.  356;  Beer  Co.  v. 
ICasaachusetts,  97  U.  S.  25;  Fertilizing  Co.  v.  Hyde  Park.  07  IT.  S.  659, 
669. 

3  Congress  indeed  exercises  some  of  the  police  power  indirectly 
through  the  exercise  of  its  other  powers,  as  where  it  excludes  immoral 
publications  from  the  mails. 


STATUTORY    PROVISIONS.  6 

interstate  commerce  is  paramount  to  it;  ai  d  when 
the  two  conflict,  the  police  power  of  the  State  must 
give  way.'  Except  in  so  far  as  they  are  subject  to 
this  power  on  the  part  of  the  States,  telegraph  com- 
panies which  cross  the  boundary  line  of  the  State 
are  free  from  State  regulation  or  taxation.  They 
are  instruments  of  commerce,  and  where  they  pass 
from  one  State  to  another,  of  interstate  commerce: 
and  instruments  of  interstate  commerce  can  never 
be  regulated  nor  taxed  as  such  by  a  single  State." 
In  pursuance  of  the  same  idea,  it  has  been  held  by 
a  State  court  that  the  Act  of  Congress,3  giving  to 
any  telegraph  corapany  the  right  to  construct,  etc.. 
telegraph  lines  on  the  public  lands  of  the  United 
States,  etc.,  upon  evidence  of  acceptance  of  its 
terms  under  specified  restrictions,  etc.,  is  a  regula- 
tion of  commerce,  within  the  meaning  of  that  clause 
of  the  United  States  Constitution  which  declares 
that  Congress  shall  have  the  power  to  "regulate 
commerce,  etc..  among  the  several  States."  and 
supersedes  State  legislation  on  the  subject." 

§  2.  Provisions  of  the  Revised  Statutes  of  the 
United  states. — Several  Acts  of  Congress,  as  now 
collected  in  the  Revised  Statutes  of  the  United 
States,  confer  important  privileges  upon  telegraph 
companies  accepting  their  provisions,  and  have  been 
the  basis,  in  part  at  least,  of  a  line  of  important  ju- 

1  Henderson  v.  New  York,  92  V .  S.  25!);  Chy  Lung  v.  Freeman,  I>>. 
275;  Railroad  Company  v.  Husen.  95  U.  S.  465;  Beer  Co.  v.  Massachu- 
setts, !»7  U.  S.  25.  33;  Leisy  v.  Hardin.  135  U.  S.  100. 

2  Ratterman  v.  Western  Union  T«  1.  Co.,  127  U.  S.  41 1  :  >.  c,  2  Inter- 
state Com.  Rep.  50;  Peneacola  Tel.  Co.  v.  Western  Union  Tel.  (Jo.,  'Mi 
U.  S.  1;  Telegiapb  Co.  v.  Texas,  105  L\  S.  460;  Western  Union  Tel. 
Co.  v.  Pendleton.  122  U.  S.  347. 

:!  14  U.  S.  Stat,  at  Large,  221  ;  post,  next  section. 

*  \Ve3tern  Union  Tel.  Co.  v.  Atlantic,  etc.  Tel.  Co..  :>  New  102. 


4  RIGHTS    OF    TELEGRAPH    ( '<  >M  I' AN!  ES. 

dicial  decisions  exempting  such  companies  from 
State  taxation  and  control.  These  provisions  are 
as  follows  : 

••  Any  telegraph  company  now  organized,  or  which  may  here- 
after be  organized,  under  the  laws  of  any  State,  shall  have  the 
right  to  construct,  maintain  and  operate  lines  of  telegraph  through 
and  over  any  part  of  the  public  domain  of  the  United  States,  over 
and  along  any  of  the  military  or  post-roads  of  the  United  States 
which  have  been  or  may  hereafter  be  declared  such  by  law,  and 
over,  under  or  across  the  navigable  streams  or  waters  of  the 
United  States:  but  such  Hues  of  telegraph  shall  be  so  constructed 
and  maintained  as  not  to  obstruct  the  navigation  of  such  streams 
and  waters,  or  interfere  with  the  ordinary  travel  on  such  military 
or  post-roads. ' 

"  Any  telegraph  company  organized  under  the  laws  of  any  State 
shall  have  the  right  to  take  and  use  from  the  public  lands  through 
which  its  lines  of  telegraph  may  pass,  the  necessary  stone,  timber, 
and  other  materials  for  its  posts,  piers,  stations,  and  other  need- 
ful uses  in  the  construction,  maintenance  and  operation  of  its  lines 
of  telegraph,  and  may  pre-empt  and  use  such  portion  of  the  un- 
occupied public  lands  subject  to  pre-emption  through  which  their 
lines  of  telegraph  may  be  located  as  may  be  necessary  for  their 
stations,  not  exceeding  forty  acre's  for  each  station  ;  but  such  sta- 
tions shall  not  be  within  fifteen  miles  of  each  other. '"-' 

u  The  rights  and  privileges  granted  under  the  provisions  of  the 
Act  of  duly  twenty-four,  eighteen  hundred  and  sixty-six.  entitled 
■  An  act  to  :tid  in  the  construction  of  telegraph  lines,  and  to  se- 
cure to  the  government  the  use  of  the  same  for  postal,  military 
and  other  purposes/  or  under  this  title,  shall  not  be  transferred 
by  any  company  acting  thereunder  to  any  other  corporation,  asso- 
ciation or  person."8 

••Telegrams  between  the  several  departments  of  the  government 
and  their  officers  and  agents,  in  their  transmission  over  the  lines 
of  any  telegraph  company  to  which  has  been  given  the  right,  of 
way.  timber,  or  station    lands  from    the    public  domain,  shall    have 

1  Rev.  Stat.  U.  s.  §  :>•_><;:&;  Act  Cong.  July  21.  18<;<;,  eh.  230,  §  1 :  1  I 
t'.  S.  Stut.  at  Large,  221;  Act  Cong.  Feb.  20,  1S77,  cti.  63;  19  IT.  S. 
st:it.  at  Large,  232. 

2  Rev.  St.  U.  S.  §  5264;  Act  Cong.  July  24, 1866,  ch.  230,  §  1:  14  U. 
S.  St.  :it  Large,  221. 

R<  \.  St.  r.  s.  sj  r>205:   Act  Cong.  July  21.  1Q66.  ch.  -_>:u).  §  :',. 


STATUTORY    PROVISIONS.  5 

priority  over  till  other  business,  at  such  rates  as  the  Postmaster- 
General  shall  annually  fix.  And  no  part  of  any  appropriation  for 
the  several  departments  of  the  government  shall  be  paid  to  any 
company  which  neglects  or  refuses  to  transmit  such  telegrams  in 
accordance  with  the  provisions  of  this  section."1 

'•  The  United  States  may.  for  postal,  military,  or  other  purposes, 
purchase  all  the  telegraph  lines,  property  and  effects  of  any  or  all 
companies  acting  under  the  provisions  of  the  Act  of  July  twenty- 
fourth,  eighteen  hundred  and  sixty-six,  entitled  '  An  act  to  aid  in 
the  construction  of  telegraph  lines,  and  to  secure  to  the  govern- 
ment the  use  of  the  same  for  postal,  military  and  other  purposes,' 
or  under  this  title,  at  an  appraised  value,  to  be  ascertained  by 
five  competent,  disinterested  persons,  two  of  whom  shall  be  se- 
lected by  the  Postmaster-General  of  the  United  States,  two  by 
the  company  interested,  and  one  by  the  four  previously  selected.  "- 

"  Before  any  telegraph  company  shall  exercise  any  of  the  pow- 
ers or  privileges  conferred  b}'  law  such  company  shall  file  their 
written  acceptance  with  the  Postmaster-General  of  the  restrictions 
and  obligations  required  by  law,"3 

"  Whenever  any  telegraph  company,  after  having  filed  their  writ- 
ten acceptance  with  the  Postmaster-General  of  the  restrictions  and 
obligations  required  by  the  act  approved  July  twenty-fourth, 
eighteen  hundred  and  sixty-six,  entitled  '  An  act  to  aid  in  the  con- 
struction of  telegraph  lines,  and  to  secure  to  the  government  the 
use  of  the  same  for  postal,  military  and  other  purposes,'  or  by 
this  title,  shall  by  its  agents  or  employes,  refuse  or  neglect  to 
transmit  any  such  telegraphic  communications  as  are  provided  for 
by  the  aforesaid  act,  or  by  this  title,  or  by  the  provisions  of  sec- 
tion two  hundred  and  twenty-one,  title,  '  The  Department  of 
War.'  authorizing  the  Secretary  of  War  to  provide  for  taking 
meteorological  observations  at  the  military  stations  and  other 
points  of  the  interior  of  the  continent,  and  for  giving  notice  on 
the  northern  lakes  and  sea-board  of  the  approach  and  force  of 
storms,  such  telegraph  company  shall  be  liable  to  the  penalty  of 
not  less  than  one  hundred  dollars,  and  not  more  than  one  thousand 

1  Rev.  St.  U.  S.  §  5266;  Act  Cong.  July  "24,  I860,  ch.  230,  §  2;  14  IT.  S. 
St.  at  Large,  221;  Act  Cong.  June  1872,  eh.  335,  §  17;  17  1.  S.  St.  at 
Large,  287;  Act  Cong.  June  10,  1872,  ch.  415,  §  1  ;  17  U.  S.  St.  at  Large, 
33(1,  337. 

2  Rev.  St.  U.  S.  §  52(i7;  Act  Cong.  July  24,  L866,ch.  230, §3;  ltU.S.St. 
at  Large,  221 ;  Act  Cong.  June,  1874,  ch.  461 ;  18  U.  S.  St.  at  Largo,  250. 

::  Rev.  St.  IT.  S.  §  5208;  Act  Cong.  July  24,  1866,  §  4. 


fi  RIGHTS    OF    TELEGRAPH    COMPANIES. 

dollars  for  each  such  refusal  or  neglect.  [To  be  recovered  by  an 
action  or  actions  at  law  in  any  district  court  of  the  United  States.]"1 
§  3.  Validity  and  Effect  of  this  Statute  in  Gen- 
eral.— There  is  no  doubt  of  the. constitutional  power 
of  Congress  to  enact  this  statute."  It  is  a  regulation 
of  commerce  among  the  several  States,  under  the 
commerce  clause  of  the  Federal  Constitution,  and 
hence  it  supersedes  State  legislation  on  the  subject.' 
By  another  act  of  Congress  "  all  railroads  or  parts 
of  railroads  which  are  now  or  hereafter  may  be  in 
operation/'  are  established  as  post-roads  of  the 
United  States.4  This  statute,  it  is  to  he  borne  in 
mind,  is  enacted  under  a  grant  of  power  to  Congress 
in  the  Federal  Constitution  to  establish  post-offices 
and  post-roads/'  The  privilege  granted  by  the  stat- 
ute quoted  in  the  preceding  section,  to  telegraph 
companies  accepting  the  provisions  of  the  act,  to 
maintain  their  lines,  extends,  it  seems,  to  maintain- 
ing their  wires  along  the  line  of  an  elevated  railroad 
in  a  city,  and  this  privilege  cannot  be  destroyed  by 
State  legislation/' 

§    4.      Effect  of  this  Statute  in  Exempting  Telegraph 
Companies    from    State   Taxation   and    Control. — The 

1  Rev.  St.  U.  S.  §  5269:  Act  Cong.  June  10,  1S72,  eh.  415,  §1;  17  U.  S. 
St.  at  Large,  366,  367;  Act  Cong.  Feb.  20,  1877,  en.  63;  19  U.  S.  St.  at 
Large,  232;  Act  Cong.  Feb.  27,  1877,  eb.  69;  19  U.  S.  St.  at  Large,  252. 

2  Pensaeola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  2  Woods  (U.  S.),  643; 
».  c,  affirmed,  69  U.  S.  1. 

8  Western  Uniou  Tel.  Co.  v.  Atlantic,  etc.  Tel.  Co.,  5  \ev.  102;  post, 
§§4,8. 

<Rev.  St.  U.S.  §3964. 

*  Const.  U.  S.  Art.  1,  §  S. 

8  Western  Union  Tel.  Co.  v.  New  York,  3  L.  ft.  A.  449;  2  Interstate 
Com.  Rep.  533;  6  Rail.  &  Corp.  L.  J.  105;  38  Fed.  Rep.  552.  Tbe  court 
had  sucb  doubt  of  the  validity  of  the  State  statute  (X.  Y.  Act  of  1S87, 
ch.  716),  that  it  held  that  an  injunction  against  any  interference  with 
the  wires  should  not  be  granted  until  the  question  could  be  passed  upon 
by  the  court  of  last  resort,  the  maintenance  of  wires  thereon  not  being 
attended  with  any  public  inconvenience. 


STATE    TAXATION    AND    CONTROL.  / 

action  taken  by  Congress,  in  the  form  of  this  statute, 
has  had  the  effect  at  least  of  making  such  telegraph 
companies  as  should   accept  its  provisions,  agencies 
of  the  general   government,   if  not  of  recognizing 
their  character  as   agencies  of  interstate  commerce. 
It  has  influenced  in  some  degree,  no  doubt,  the  Fed- 
eral judiciary  in   the  establishment  of  a  principle 
which  has  in  a  great  measure  lifted  such  companies, 
above  State  taxation  and  State  control;  though  with- 
out the  aid  of  such  a  statute  they  would,  under  the 
present  interpretation    of  the  interstate    commerce 
clause  of  the  Federal  Constitution,  be  removed  from 
interstate  taxation  and  control  to   the  same   extent 
and   on  the  same   principle   as  interstate   railways. 
Quoting  from  a  recent  decision  of  the  Supreme  Court 
of  the   United    States:      "  That   principle  is,  in  re- 
gard to  telegraph    companies   which   have  accepted 
the    provision   of  the  Act  of  Congress  of  July  24, 
1866,  sections  5263  to  5268  of  the  Revised  Statutes 
of  the  United  States,  that  they  shall   not  be  taxed 
by  the  authorities  of  a  State  for  any   messages,  or 
receipts  arising  from  messages,  from  points  within 
the  State  to  points  without,  or  from  points   without 
the  State  to  points  within,  but  that  such  taxes  may 
be  levied   upon  all   messages  carried  and  delivered 
exclusively   within   the   State.     The  foundation    of 
this    principle  is  that  messages  of  the  former  class 
are  elements  of  commerce  between   the  States  and 
not  subject  to  legislative  control  of  the  States,  while 
the  latter  are   elements  of  internal  commerce  solely 
within  the  limits  and  jurisdiction  of  the  State,  and, 
therefore,  subject  to  its  taxing  power.'" 

1  Western  Union  Tel.  (Jo.  v.  Alabama  State  Board,  132  U.  S.472;  S.C., 
10  Sup.  Ct.  Rep.  161  (reversing  s.  c,  80  Ala.  273).  The  following  case* 
are  quoted  by  the  court  as  establishing  this  principle:   Pensacola  Tel. 


8  RIGHTS    OF    TE1.KOK  AI'll     COMPANIES. 

§  5.  Invalidity  of  State  Statute  Prescribing  Prior- 
ity of  Interstate  Messages. —  A  State  statute1  pre- 
scribing thai  telegraph  companies  might  arrange 
with  publishers  of  newspapers  for  the  transmission 
of  intelligence  of  general  and  public  interest  out  of 
its  order,  and  that  communications  for  and  from 
officers  of  justice  should  take  precedence  of  all  others, 
and  also  requiring  telegrams  to  be  delivered  by  mes- 
sengers to  the  persons  to  whom  they  were  addressed, 
if  they  resided  within  one  mile  of  the  telegraph  sta- 
tion, or  within  the  city  and  town  in  which  such  sta- 
tion was — has  been  held,  in  so  far  as  it  attempted  to 
prescribe  the  order  and  manner  of  delivery  of  tele- 
grams in  other  States,  in  conflict  with  the  provision 
of  the  Constitution  of  the  United  States  vesting  in 
Congress  the  power  to  regulate  commerce  among  the 
States.'-' 

§  6.  Limit  of  State  Power  of  Taxation — Property 
Taxable — Interstate  Business  not. — The  foregoing 
premises3  have  led  to  the  conclusion  that  the  prop- 
erty of  a  telegraph  company,  situated  within  a  State, 
may  be  taxed  therein  as  all  other  property  is  taxed; 
but  that  its  business  of  an  interstate  character  can- 
not be  taxed.4  In  other  words,  the  State  cannot  tax 
a  telegraph  company  on  massages  sent,  except  where 

Co.  v.  Western  Union  Tel.  Co.,  90  U.  S.  1 ;  Telegraph  Co.  v.  Texas,  105 
U.  S.  460;  Western  Union  Tel.  Co.  v.  Massachusetts,  125  U.  S.*530; 
Ratternian  v.  Western  Union  Tel.  Co.,  127  U.  S.  411;  Leloup  v.  Port  of 
Mobile.  127  U.  S.  640:  Fargo  v.  Michigan,  121  U.  S.  230;  Philadelphia, 
etc.  Steamship  Co.  v.  Pennsylvania.  122  l*.  S.  320. 

1  Ind.  Rev.  Stat.  1881,  §§  4176,  4178. 

2  Western  Union  Tel.  Co.  v.  Pendleton,  122  V .  S.  347;  7  Sup.  Ct.  Rep. 
1126;  36  Alt).  L.  J.  67. 

3  Ante.,  §  4. 

1  Leloup  V.  Port  of  Mobile,  127  U.    S.    640;    12    Interstate    Com.    Rep. 
134:   Western  Union  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530. 


STATE    TAXATION.  9 

they  are  transmitted  within  the  State;1  hut  such 
taxes  may  be  levied  upon  all  messages  carried  and 
delivered  exclusively  within  the  State.4  It  logic- 
ally follows  that  a  single  tax,  assessed  under  a  State 
statute  upon  the  receipts  of  a  telegraph  company, 
derived  from  interstate  and  domestic  commerce,  and 
returned  and  assessed  without  separation  and  appor- 
tionment, is  invalid  only  in  proportion  to  the  extent 
that  such  receipts  were  derived  from  interstate  com- 
merce." In  short,  the  doctrine  of  a  succession  of 
decisions  of  the  Supreme  Court  of  the  United  States* 
is  that  no  tax  can  be  imposed  by  State  authority 
upon  messages,  where  the  communication  is  carried 
either  into  the  State  from  without,  or  from  within  the 
State  to  another  State. 

§  7.  License  Tax  for  the  Privilege  of  Doing:  Busi- 
ness.— It  has  been  held  by  several  State  courts  that 
a  municipal  corporation  may,  provided  it  has  power 
to  do  so  under  its  charter,  impose  a  license  tax  upon 
a  foreign  telegraph  company  having  an  agency,  and 
doing  business  in  the  city,  and  that  such  a  tax  is 
constitutional.5  But,  overruling  this  view,  the  Su- 
preme Court,   of  the  United  States  has  held  that  a 

1  Western  Union  Tel.  Co.  v.  Pennsylvania.  128  U.  S.39;  IS  Md.  L.  J. 
744;  9  Sup.  Ct.  Rep.  6;  2  Interstate  Com.  Rep.  241. 

-  Western  Union  Tel.  Co.  v.  Alabama.  132  U.  S.  472;  10  Sup.  Ct.  Rep. 
161. 

3  Ratterman  v.  Western  Union  Tel.  Co.,  127  U.  S.  411 ;  2  Interstate 
Com.  Rep.  59. 

*  Western  Union  Tel.  Co.  v.  Alabama  State  Board.  132  U.  S.  472,  475; 
Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  9(5  U.  S.  1;  Telegraph 
Co.  v.  Texas,  105  U.  S.  460;  Western  Union  Tel.  Co.  v.  Massachusetts, 
125  U.  S.  530;  Ratterman  v.  Western  Union  Tel.  Co.,  127  U.  S.411;  Le- 
loup  v.  Port  of  Mobile,  127  U.  S.  640;  Fargo  v.  Michigan,  121  U.  S.  230; 
Philadelphia,  etc.  Steamship  Co.  v.  Pennsylvania,  122  U.  8.  326. 

3  Western  Union  Tel.  Co.  v.  Richmond,  26  Gratt.  (Va.)  1 ;  Western 
Union  Tel.  Co.  v.  State,  55  Tex.  314;  Western  Union  Tel.  Co.  v.  Mayer, 
28  Ohio  St.  521  ;    Port  of  Mobile  v.  Leloup,  76  Ala.  401. 


Ill  RIGHTS    OK    TELEGRAPH    COMPANIES. 

general  licmst  tax  on  such  a  company,  doing  business 
in  differenl  States,  affects  its  entire  business,  inter- 
state as  well  as  domestic,  and  is.  therefore,  uncon- 
stitutional. 

6  8.  N<»  Exclusive  Privilege  of  Establishing  Line. — 
As  elsewhere  seen,  an  Act  of  Congress  gives  to  tele- 
graph companies  which  accept  its  provisions  the 
right  to  extend  their  lines  along  post-roads,  and,  as 
already  stated,  another  Act  of  Congress  designates 
railroads  as  post-roads.  From  these  premises  a 
Federal  court  has  made  the  deduction  that  a  rail- 
road company  cannot  grant  to  a  telegraph  company 
the  sole  right  to  construct  a  line  over  the  railroad 
company's  right  of  way,  so  as  to  exclude  other  com- 
panies whose  lines  would  not  interfere  with  those  of 
the  first  company."  A  statute  of  Texas'  enacts  that 
no  corporation  shall  contract  with  a  land-owner  for 
the  exclusive  right  to  maintain  a  telegraph  line  on 
his  land.  It  is  held  that  the  prohibition  applies  to 
such  an  agreement  between  a  railroad  company  and 
a  telegraph  company."  The  Supreme  Court  of  Ala- 
bama holds  that  a  contract  by  which  a  railroad  com- 
pany undertakes  to  cede  to  a  telegraph  company  the 
exclusive  privilege  of  constructing  and  maintaining 
ils  lines  over  the  railroad  company's  right  of  way, 
even  if  otherwise  valid,  cannot  debar  the  State,  in 
the  exercise   of  the  right  of  eminent  domain,  from 

1  Leloup  v.  Port  of  Mobile,  127  U.  S.  640  (reversing  s.  <'..70  Ala.  401) ; 
2  Interstate  Com.  Rep.  134.  So  held  in  St.  Louis  v.  Western  Union 
Tel.  Co.,  30  Fed.  Hep-  59. 

"  Ante,  §  2. 
Ante,  s  3. 

*  Western  Union  Tel.  Co.  v.  American  Union  Tel.  Co..  9  Biss.  (U.  S.) 
72. 

1  Tex.  Rev.  Stat.,  art.  624. 

c  Western  Union  I'd.  Co.  v.  Baltimore  &  Ohio  Tel.  Co..  22  Fed.  liep. 
133. 


EXCLUSIVE    PRIVILEGES.  11 

authorizing  the  establishment  of  another  telegraph 
line  over  the  same  right  of  way.' 

§  9.  State  Grant  of  Exclusive  Privilege  to  a  Par- 
ticular Company. — The  Supreme  Court  of  California 
has  held  that  a  statute  of  that  State"  granting  to  a 
certain  corporation  the  exclusive  privilege  to  con- 
struct and  maintain  lines  of  telegraph  between  cer- 
tain points,  was  not  unconstitutional.'  But  the  Cal- 
ifornia court  construed  the  question  only  with  refer- 
ence to  the  inhibitions  of  the  State  constitution.4 
The  Supreme  Court  of  the  United  States  holds 
that  such  a  State  statute'  cannot  operate  to  exclude 
a  foreign  telegraph  company,  which  has  accepted  the 
provisions  of  the  Act  of  Congress  already  quoted." 
from  constructing  and  operating  a  line  of  telegraph 
within  the  State,  whether  upon  the  public  domain,, 
upon  military  post-roads,  or  upon  lands  secured  by 
private  arrangement.7  The  last  named  court  holds 
that  this  Act  of  Congress,  in  so  far  as  it  declares 
that  the  erection  of  telegraph  lines  shall,  as  against 
State  interference,  be  free  to  all  who  accept  its  terms 
and  conditions,  and  that    a    telegraph    company  of 


1  New  Orleans,  etc.  K.  Co.  v.  Southern,  etc.  Tel.  Co..  53  Ala.  211. 

-  Cal.  Act  of  May  3,  1852. 

»  California,  etc.  Tel.  Co.  v.  Alta  Tel.  Co.,  22  Cal.  398. 

4  The  court  also  held  that  the  provision  in  the  act,  that  no  existing 
law  shall  be  construed  so  as  to  conflict  or  iuterfere  with  the  provisions 
of  this  act,  does  not  repeal  the  general  corporation  law,  so  as  to  take 
away  the  right  of  forming  corporations  to  build  lines  of  telegraph  be- 
tween those  points,  but  only  to  subject  subsequent  builders  to  the  ex- 
clusive prior  right  of  the  grantees  named  in  the  act.  Ibid.  See  1 
Thomp.  Corp.  §  047,  et  seq. 

5  Here  the  Fla.  Act  of  Dec.  11,  18GG,  granting  to  the  Pensacola  Tele- 
graph Company  the  exclusive  right  of  establishing  and  maintaining 
lines  of  telegraph,  etc. 

6  Rev.  Stat.  U.  S.,  §  5263,  et  seq. 

"  Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  96  U.  8.  1 :  affirming, 
».  c,  2  Woods    U.  s.).  643. 


12  RIGHTS    OF    rELEGKAPH    COMPANIES. 

one  State  shall  not,  after  accepting  them,  be  ex- 
clude! by  another  State  from  prosecuting  its  busi- 
ness within  her  jurisdiction,  is  a  legitimate  regula- 
tion of  commercial  intercourse''  among  the  States, 
and  is  appropriate  legislation  to  execute  the  powers 
of  ( lohgress  over  the  postal  service.' 

y.  10.  Exclusive  Privileges  under  United  States 
Patents. — A  decision  of  the  Supreme  Court  of  the 
United  States,  rendered  in  the  year  1858,  in  regard 
to  the  rights  of  rival  telegraph  companies  operating 
under  the  same  patent,  must  have  had  little  more 
than  a  transient  interest,  as  that  particular  patent 
has  long  since  expired;  yet  for  the  sake  of  com- 
pleteness, a  note  of  it  is  here  given  :  A  telegraph 
company  secured  the  right  to  transmit  telegrams,- 
under  Morse's  patent,  from  Baltimore  to  Wheeling, 
with  branches  to  Washington  and  Pittsburg.  Another 
compan\T  had  such  right,  under  the  same  patent, 
from  Pittsburg  to  Philadelphia,  and  still  another 
had  such  right  from  Harrisburg  to  Baltimore.  It 
was  held  that  the  transmission  of  telegrams,  by  the 
last  mentioned  lines,  from  Pittsburg  to  Baltimore, 
was  no  injury  to  the  first  mentioned  line  for  which 
there  was  a  legal  remedy.2 

§  11.  Right  to  Extend  Line  upon  Interstate 
Bridge  over  Navigable  Waters. — We  have  elsewhere 
set  out,  a-  (i  now  stands  in  the  Revised  Statutes  of 
the  United  States,  the  language  of  the  Act  of  Con- 
gress which  gives  authority  to  telegraph  lines  which 
accept  the  provisions  of  the  act  to  construct  their 
lines    upon    certain   conditions  across  the  navigable 


Pens&cola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  9G  U.  S.  I. 
Western  Tel.  Co.  v.  Magnetic  Tel.  Co..  til  How.  (U.  S.>  456;    Weat- 
ern  Tel.  Co.  v.  Penniman.  Id.  400. 


OBSTRUCTING    NAVIGATION.  VS 

waters  of  tin;  United  States.'  It  has  been  held  that 
the  failure  of  such  a  company  to  file  with  the  Post- 
master-General the  written  acceptance  of  the  Act  of 
Congress,  as  therein  provided,  is  fatal  to  a  proceed- 
ing instituted  by  it  to  condemn  so  much  of  a  bridge 
spanning  an  interstate  navigable  river  as  is  neces- 
sary to  support  its  proposed  line.2 

§  12.  Not  Allowed  to  Interfere  with  the  Opening 
of  the  Draw-Span. — But  even  though  the  company 
may  have  acquired  a  right  to  cross  a  navigable 
stream,  by  accepting  the  provisions  of  the  Act  of 
Congress  elsewhere  set  out,"  it  is  a  reasonable  con- 
clusion that  its  rights  must  be  exercised  in  sub- 
ordination to  the  rights  of  navigation.  Hence,  it 
will  not  be  allowed  so  to  extend  its  wires  as  to  ob- 
struct the  passage  of  boats  and  vessels.  Laying 
out  of  view  every  other  consideration,  it  would  be 
an  obvious  perversion  of  the  meaning  of  the  Act  of 
Congress,  to  allow  a  telegraph  company  to  obstruct 
with  its  wires  the  passage  of  vessels  along  a  naviga- 
ble stream,  when  it  could  easily  accomplish  the  de- 
sired purposes  by  laying  a  nub-aqueous  cable.  This 
is  well  illustrated  by  a  case  where  a  telegraph  com- 
pany had  applied  in  a  State  court  for  the  ap- 
pointment of  commissioners  to  assess  damages  for 
the  condemnation  of  a  right  of  way  tor  a  telegraph 
company  across  a  bridge  which  spanned  a  navigable 
river.  It  appeared  from  the  application  that  the 
plans  which  the  telegraph  company  had  made  for 
the  construction  and  operation  of  its  line  were  im- 
practicable, and  would  interfere  with  the  opening  of 

1  Ante,  §  2. 

-Chicago,  etc.  Bridge  Co.  v.  Pai*.  Mat.  Tel.  Co.,   'M\   K;m.    113;  8.  C, 
12  Pat:.  Rf  p.  .">.'>.">. 
8  Ante,  i  •_». 


14  RIGHTS    OF    TELEGRAPH    COMPANIES. 

the  draw-span  of  the  bridge,  and  with  the  naviga- 
tion of  the  river.  The  court  held  that  the  proprie- 
tors of  the  bridge  were  entitled  to  an  injunction,  re- 
straining the  telegraph  company  and  the  commission- 
ers appointed  on  its  application  from  proceeding  fur- 
ther thereon;  and  that  a  proposal  by  the  company,  in 
its  answer  in  the  injunction  proceeding,  of  a  plan 
substantially  different  from  the  one  upon  which  the 
commissioners  were  appointed,  and  which,  it  was 
claimed,  would  not  interfere  with  the  operation  of 
the  draw-span,  would  not  defeat  the  right  to  the  in- 
junction.1 

§  13.  Statutory  Protection  of  Poles  and  Wires. — 
Telegraph  and  telephone  companies  have  frequently 
erected  their  poles  and  strung  their  wires  along  high- 
ways, without  condemning  the  right  of  way  and  pav- 
ing compensation  for  the  easement  to  the  owner  of 
the  fee,  which  we  shall  see,  under  the  views  of  some 
courts,  they  are  bound  to  do."'  They  have  done 
more:  they  have  invaded  private  grounds  and  at- 
tached their  wires  to  chimneys  and  to  other  por- 
tions of  houses  without  the  consent  of  the  owners. 
•In  some  cases  they  have  obtained  such  consent  upon 
representations  that  the  license  would  be  attended 
with  no  danger  or  inconvenience  to  the  property- 
owner,  which  representations  have  turned  out  to  be 
untrue.  It  is  well  known  that  the  danger  of  fire 
and  lightning  is  sensibly  increased  by  such  wires 
being  allowed  to  come  in  contact  with  buildings. 
After  receiving  such  licenses  upon  such  representa- 
tions, they  have,  of  course,  refused  to  submit  to  the 


1  Pac.  Mat.  Tel.  Co.  v.  Chicago,  etc.  Bridge  Co..  30  Kan.  118;  s.c.,12 
Pac.  Rep.  fifio. 


PROTECTION    OF    POLES    AM)    WIRES.  15 

revocation  of  them,  but  have  claimed  a  perpetual 
grant,  and  have  sometimes  sought  refuge  under  the 
doctrine  of  prescription,  as  applied  to  nuisances. 
To  remedy  such  outrages  many  legislatures  have  re- 
cently enacted  that  no  lapse  of  time  shall  justify  a 
prescriptive  right  to  any  wire,  pole,  or  cable  used  for 
any  telegraph,  telephone,  electric  light,  or  other 
electric  purpose,  or  for  the  purpose  of  communica- 
tion, attached  to.  extended  upon  or  over  any  build- 
ing or  land.' 

On  the  other  hand,  land-owners  and  others  have 
cut  telegraph  poles  and  wires  in  places  where  they 
were  rightfully  planted  and  suspended,  and  to  rem- 
edy such  wrongs  statutes  have  been  enacted  pun- 
ishing the  malicious  injury  to,  or  interference  with 
the  property  of  such  corporations  by  fine  and  im- 
prisonment." A  statute  enacted  by  the  territory 
(now  State)  of  Idaho,  provides: 

•'Any  person  who  shall  wilfully  cut  down  or  burn,  or  otherwise 
materially  injure,  any  telegraph,  telephone  or  electric  light  pole, 
or  shall  shoot  so  as  to  materially  injure  any  insulator,  or  knock 
said  insulator  loose  from  the  pole  to  which  it  is  attached,  or  other- 
wise materially  injure  such  insulator,  or  who  shall  shoot  any  tele- 
graph, telephone,  or  electric  light  wire,  thereby  breaking  said 
wire,  or  who  shall  otherwise  wilfully  cut.  break,  or  injure  such 
wire,  shall,  upon  conviction  thereof,  be  fined."  and  in  case  of  fail- 
ure to  pay  such  tine,  shall  be  imprisoned.3 

A  statute  of  South  Carolina  enacts  as  follows: 

"Any  person  who  shall  wilfully ,  or  unlawfully,  injure,  damage,  or 
destroy  any  pole,  or  wire,  of  any  telegraph,  telephone,  or  electric 
light  company,  in  this  Stale,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  punished  by  fine, 
not  exceeding  one  hundred  dollars,  or  imprisonment,  not    exceed- 

1  111.  A<t  June  16,  1887;  L.  1887,  p.  298. 

28ee,  for  instance,  Nebraska Act  March  30,1887:  L.  1887,  ch.  87,  p. 
634. 
::  Male.  Act  of  February  7,  1889;  Gen.  L.  [daho  1889,  p.  r>4. 


16  RIGHTS    <>j-    TELEGKAPH    COMPANIES. 

ing  thirty  days,  or  both,  in  the  discretion  of  the   court    or   ;t    trial 
justice."1 

A  statute  of  Texas  is  as  follows: 

"If  any  person  shall  intentionally  break,  cut  or  tear  down,  mis- 
place, or  in  any  other  manner  injure  any  telegraph  or  telephone 
wire,  post,  machinery,  or  other  necessary  appurtenance  to  any 
telegraph  or  telephone  line,  or  in  any  way  wilfully  obstruct  or  in- 
terfere with  the  transmission  of  messages  along  such  telegraph  or 
telephone  line,  he  shall  he  punished  by  confinement  in  the  peni- 
tentiary, not  less  than  two.  nor  more  than  five  years,  or  by  fine, 
not  less  than  one  hundred,  nor  more  than  two  thousand  dollars."'2 

By  statute  of  Vermont  it  is  provided: 
"If  a  person  wilfully,  or  intentionally,  injures  a  telegraph  wire, 
post  or  other  fixture,  erected  or  maintained  in  pursuance  of  this 
chapter,  or  wilfully  interferes  with  the  working  of  such  telegraph 
line,  or  aids,  or  assist  in  such  offense,  he  shall  forfeit  one  hundred 
dollars,  to  be  recovered  by  an  action  of  debt,  founded  on  this  sec- 
tion, in  the  name  of  the  owner  of  such  telegraph  line,  for  his  use  ; 
and  he  may  also  be  lined  and  imprisoned,  as  provided  in  other 
enses  of  malicious  acts."3 

A  statute  of  Wisconsin  is  as  follows: 

•Any  person  having  the  right  so  to  do.  who  shall  remove,  or 
change,  any  building,  or  other  structure,  or  any  timber,  standing 
or  fallen,  to  which  any  telegraph  or  telephone  lines,  or  wires,  are 
in  any  manner  attached,  or  cause  the  same  to  be  done,  which  shall 
destroy,  disturb  or  injure  the  wires,  poles,  or  other  property  of 
any  telegraph  or  telephone  company  transacting  business  in  this 
State,  without  first  giving  to  such  company,  at  its  otlice  nearest  to 
such  place  of  injury,  at  least  twenty-four  hours'  previous  notice 
thereof,  shall  be  punished  by  imprisonment  in  the  county  jail  not 
more  than  thirty  days,  or  by  line  not  exceeding  fifty  dollars.  And 
any  person  who  shall  break  down",  interrupt,  or  remove  any  tele- 
graph or  telephone  line,  or  wire,  or  destroy,  disturb,  interfere 
with,  or  injure  the  wires,  poles,  or  other  property  of  any  telegraph 
or  telephone  company  in  this  Stat*.',  shall  be  punished  by  imprison- 
ment in  the  county  jail,  not  more  than  three  mouths,  or  by  line 
not  exceeding  one  hundred  dollars."1 

1  S.  Car.  Geu.  Stats.  1882,  §  2524. 

-  Rev.  Stat.  Tex.,  §  115S;  Penal  Code,  Art.  677. 

Rev.  Law-  Vt.  1880,  §3623. 
4  Key.  Stats.  Wis.,  §  4559,  as  amended  by  Act  of  April   16,  1885. 


PROTECTION    OF    POLES    AND    WIRES.  17 

§  14.  Damages  for  Cutting  Such  Wires. — Such 
statutes  are  intended  to  give  that  protection  to  tele- 
graph and  telephone  companies  which  could  not  be 
afforded  by  a  civil  action  for  damages,  in  view  of 
the  well  known  fact  that  the  perpetrators  of  such 
mischief  are  often  insolvent.  But  such  an  action, 
of  course,  lies;  and  where  the  author  of  the  mischief 
was  another  telegraph  company,  a  jury  was  found 
willing  to  assess  damages  in  favor  of  a  receiver  of 
the  insolvent  telegraph  company,  whose  wires  had 
been  thus  cut  by  its  solvent  rival,  in  the  sum  of 
$240,000,  which,  however,  the  court  set  aside  as 
excessive.1 

1  Farnsworth  v.  Western  Union  Tel.  Co.,  6  N.  Y.  Supp.  735. 

(2) 


IS  COMPENSATION    FOR    USE    OF    LAND. 


CHAPTER  II. 

BIGHT  TO  COMPENSATION  FOR  THE  USE  OF  LAND  BY  TEL- 
EGRAPH AND  OTHER    ELECTRICAL    COMPANIES. 

Section. 

17.  Laud  may  be  Condemned  for, 

18.  Whether  Telegraph   Lines  upon  Highways  an  Additional  Serv- 

itude. 
10.     How  as  to  Lines  Constructed  on  Railroad  Company's  Right  of 
Way. 

20.  Right  of  Railway  Company  to  Compensation  from  Telegraph 

Company  in  such  Cases. 

21.  Construction  of  a  Statute  as  to  the  Power  to  Pass  Under  a  Rail- 

road. 

22.  Additional  Burdens  on  the  Fee  by  Electrical  Companies. 

23.  Requisites  of  the  Petition  to  Condemn. 

24.  Release  of  Damages  by  Acquiescence. 

§  17.  Land  may  be  Condemned  for. — All  unlim- 
ited legislative  power,  such  as  that  which  exists  in 
the  Parliament  of  Great  Britain,  extends  to  the  tak- 
ing of  private  property  for  public  use.  Our  Amer- 
ican Federal  and  State  constitutions  impose  a  lim- 
itation upon  this  power  in  the  form  of  provisions 
to  the  effect  that  private  property  shall  not  betaken 
for  public  use  without  just  compensation.1  Under 
our  American  theories  of  government  there  is  this 
implied  reservation  upon  the  power  of  State  legis- 
latures, that   they   cannot  authorize   the  taking  of 

1  Const.  U.  S.,  Amendments.  Art.  .*>. 


LAND    MAY    BE    CONDEMNED    FOR.  19 

private  property  for  -private  use,  even  on  the  pay- 
ment of  just  compensation;  for  the  power  of  govern- 
ment in  free  countries  does  not  extend  so  far  as  to 
take  one  man's  property  from  him  and  give  it  to 
another,  or  to  compel  one  man  to  sell  his  property 
to  another,  when  no  consideration  of  public  neces- 
sity or  convenience  requires  it  to  be  done.  Unless 
the  use  to  which  such  a  statute  undertakes  to  devote 
the  property  of  an  individual  is  a  public  use,  the 
statute  is,  therefore,  unconstitutional  and  void.1 
But  a  line  of  telegraph  is,  beyond  all  question,  a 
public  use,  and  therefore  a  statute  authorizing  the 
condemnation  of  the  land  of  individuals  to  estab- 
lish a  line  of  telegraph,  is  constitutional  and  valid.2 
Without  doubt,  telephones  stand  on  the  same  footing. 
They  are  public  agencies  established  to  facilitate  the 
transmission  of  intelligence,  just  as  telegraphs  are. 
In  fact,  the  telephone,  so  to  speak,  is  merely  a  new 
instrument  of  telegraphing.  On  this  ground,  as 
hereafter  seen,3  the  power  of  a  State  to  regulate  tele- 
phone charges  and  to  enact  statutes  against  unjust 
discrimination  by  telephone  companies  is  upheld. 
Statutes  are  now  frequently  enacted  conferring  upon 
telephone,  as  well  as  upon  telegraph  companies,  the 
power  of  eminent  domain.4 

§  18.  Whether  Telegraph  Lines  upon  Highways 
an  Additional  Servitude. — A  statute  of  the  United 
States,  elsewhere  set  out,5  authorizes  telegraph  com- 
panies which  accept  the  provisions  of  the  act  to  oc- 
cupy with  their  lines  any  post-roads.     By  the  terms 

1  Beekmau   v.  Saratoga,  etc.  R.  Co.,  3  Paige  (N.  Y.),  4"> :  s.  C,  22 
Am.  Dec.  679. 

2  State  v.  American,  etc.  News  Co.,  43  N.  J.  Law,  381. 

3  Post,  §  104,  et  seq. 

*  See,  for  instance,  Laws  Wash.  Tr.  Act.  Feb.  1,  1888;  en.,  33,  p.  65. 
ft  Ante.  §  2. 


20       COMPENSATION  FOR  USE  OF  LAND. 

of  another  Federal  statute  all  highways  over  which 
the  mail  is  carried  under  a  contract  made  by  the 
Postmaster-General,  and  all  letter  carrier  routes  in 
towns  and  cities,  are  declared ~to  be  post-roads.  All 
public  streets  and  highways  in  the  country,  urban 
or  rural,  are  thus  made,  roughly  speaking,  post- 
roads,  and  subject  to  be  occupied  by  telegraph  lines. 
But  the  Constitution  of  the  United  States1  provides 
that  private  property  shall  not  be  taken  for  public 
use  without  just  compensation.  If,  therefore,  the 
occupying  of  a  public  street  or  road  by  a  telegraph 
line  is  a  taking  of  property  within  the  meaning  of 
this  provision,  beyond  question  Congress  has  no 
power  to  authorize  it  to  be  done,  except  on  the  terms 
of  pa}ring  just  compensation  to  the  owner  of  the 
fee.2  It  may  be  assumed  that  similar  provisions  ex- 
ist in  the  constitutions  of  all  the  States;  and  under 
them  the  question  has  arisen,  both  in  regard  to  tel- 
graph  and  telephone  lines,  whether  the  occupancy  of 
a  public  street  or  highways  by  such  lines  is  an  addi- 
tional servitude  upon  the  original  easement,  such  as 
requires  the  payment  of  compensation  to  the  owner 
of  the  fee.  It  is  a  principle  in  the  law  of  eminent 
domain  that  every  additional  burden  imposed  on 
the  original  easement  granted  by  the  land-owner 
must  be  the  subject  of  a  new  assessment  of  damages, 
or  else  it  gives  a  ground  for  an  action  for  damages.'' 
Whether  the  erection  of  a  telegraph  or  telephone 
line  upon  a  public  street  imposes  such  an  additional 

1  Amendments,  Art.  5. 

-  That  this  act  of  Congress  would  be  unconstitutional  if  it  extended 
to  authorize  the  taking  of  private  property  for  a  line  of  telegraph  with- 
out just  compensation  was  held  in  Atlantic,  etc.  Tel.  Co.  v.  Chicago, 
etc.  B.  R.'Co.,  6  Biss.  (U.  S.)  158. 

8  Hatch  v.  Railroad  Co.,  IS  Ohio  St.  92;  Little  Miami,  etc.  R.  R.  Co. 
v.  Dayton,  23  Ohio  St.  510;  State  v.  Maine,  27  Conn.  041. 


WHETHER    ADDITIONAL    SERVITUDE.  21 

burden  is  a  question  upon  which  judicial  opinion 
is  very  much  divided.  In  Massachusetts  and  Mis- 
souri the  question  has  been  answered  in  the  nega- 
tive, but  not  by  unanimous  benches.1  In  New 
York,  Illinois  and  Virginia,  the  opposing  view 
is  taken.2  The  theory  of  these  courts  is  that  the 
use  of  the  soil  of  a  street  or  highway  for  support- 
ing a  line  of  telegraph  is  not  what  may  be  termed 
a  street  use;  that  the  public  have  acquired,  by  the 
comdemnation  or  dedication  of  it  to  the  uses  of  a 
street,  merely  the  right  of  passage  over  it,  the  abso- 
lute property  remaining  in  the  owner  of  the  soil  from 
Avhom  the  right  of  passage  was  acquired;  and  that 
the  erection  of  poles,  and  the  stringing  of  wires,  by 
a  telegraph  company,  along  such  highway,  is  an  ad- 
ditional servitude,  and  constitutes  a  taking  of  private 
property  for  public  use.  The  Virginia  Court  of 
Appeals  have  held  that  a  statute  of  that  State3 
authorizing  any  telegraph  company  to  construct 
a  line  along  county  roads,  provided  the  ordinary 
use  of  the  road  is  not  obstructed,  does  not  give 
any  right  to  build  such  line  without  compensa- 
tion to  the  owner  of  the  fee;  and  that  if  the  act 
is  intended  to  give  such  right,  it  is  in  violation 
of  the  constitutional  provision  against  taking  pri- 
vate property  without  just  compensation.* 

1  Pierce  v.  Drew,  136  Mass.  75;  s.  c,  49  Am.  Rep.  7  (W.  Allen  and  C. 
Allen,  J.I.,  dissenting) ;  Julia  Building  Association  v.  Bell  Telephone 
Co.,  88  Mo.  258  (Henry,  C.T.,  and  Sherwood,  J.,  dissenting). 

2  Metropolitan  Telephone  &  Telegraph  Co.  v.  Colwell  Lead  Co.,  67 
How.  Pr.  (ST.  Y.)  365;  s.  c,  50  "X.  Y.  Super.  Ct.  488;  Board  of  Trade 
Tel.  Co.  v.  Barnett,  107  111.  507;  s.  c,  47  Am.  Rep.  453;  Western  Union 
Tel.  Co.  v.  Williams  86  Va.  696;  s.  c,  8  L.  R.  A.  429;  14  Va.  L.  J.  263; 
42  Alb.  L.  J.  4;  2  Advocate,  274;  11  S.  E.  Rep.  106:  post,  Ch.  III. 

3  Act  Va.  Feb.  10,  1880;  Va.  Code,  §§  1287-1290. 
1  Western  Union  Tel.  Co.  v.  Williams,  supra. 


22       COMPENSATION  FOE  USE  OF  LAND. 

6  I1.).  How  as  to  Lines  Constructed  on  Railroad 
Company's  Right  of  Way. — ( )n  similar  grounds  it  lias 
been  hell  thai  the  construction  of  a  telegraph  and 
telephone  line  on  a  railroad  company's  right  of  way 
imposes  an  additional  servitude  or  burden  on  the 
land,  for  which  the  owner  of  the  fee  is  entitled  to  com- 
pensation, unless  it  is  constructed  by  the  railroad 
company  in  good  faith  for  its  own  use  and  benefit 
in  the  operation  of  its  road  and  to  facilitate  its  busi- 
ness, or  is  reasonably  necessary  for  that  purpose.' 
But  it  has  been  held  with  obvious  propriety  that 
the  erection  of  a  line  of  telegraph  by  a  railroad  com- 
pany on  its  own  right  of  way  is  not  an  additional 
burden;  since,  such  a  line  being  indispensable  to  the 
operation  of  a  railway,  the  building  of  it  must  be 
regarded  as  a  part  of  the  original  easement;  and  to 
this  end  it  is  said  that  the  railroad  company  "  may 
cut  down  every  tree  and  bush  on  the  right  of  way, 
if  necessary  for  the  most  constant  and  efficient  use 
of  a  telegraph  line  built  by  it  over  and  upon  such 
right  of  way.  just  as  it  may  take  away  a  hill  or  fill 
up  a  ravine,  for  the  sake  of  a  water-tank  or  a  station- 
house."  2 

§  20.  Rijjrlit  of  Railway  Company  to  Compensa- 
tion from  Telegraph  Company  in  Such  Cases. — More- 
over, it  has  been  held,  on  grounds  already  suggested,3 
that  neither  the  Acts  of  Congress  declaring  railroads 
to  be  post-routes,  nor  the  Act  of  July  24,  1866/  pro- 
viding that  telegraph  companies  may  construct  their 
lines  over  post-roads, authorized  a  telegraph  company 

1  American  Telephone,  etc.  Co.  v.  Smith,  71  Md.  535;  s.  c,  7  L.  R.  A. 
200;   18  All.  Rep.  910. 

-  West.  Union  Tel.  Co.  v.  Rich,  19  Kan.  .">17;  s.  c,  27  Am.  Rep.  159; 
citing  St.  Joseph,  etc.  R.  Co.  v.  Drvden,  11  Kan.  186. 

8  Ante,  §  2. 

•  Ibid. 


ON    RAILWAY    RIGHT    OF    WAY.  23 

to  establish  its  lines  over  the  right  of  way  of  a  rail- 
road company  without  making  compensation  there- 
for. l  The  Supreme  Court  of  Georgia  seem  to  have  pro- 
ceeded upon  a  similar  view,  holding  that  the  erection 
of  a  line  of  telegraph,  by  a  telegraph  company  on 
the  right  of  way  of  a  railway  company,  imposes  an 
additional  burden  upon  the  easement  granted  to  the 
railway  company,  and,  the  statute  authorizing  such 
an  erection,  having  made  no  provision  for  enforcing 
the  award  of  damages,  was  accordingly  held  uncon- 
stitutional.' 

§  21 .  Construction  of  a  Statute  as  to  the  Power 
to  Pass  under  a  Railroad.  —  111  an  English  case  it 
appeared  that  a  telegraph  company  had  power  by 
their  act  to  place  under  any  public  road  their  wires 
andjripes,  and  to  break  up  the  pavement  or  soil  of 
such  road,  making  compensation  for  all  damages, 
provided  that  nothing  in  the  provision  should  extend 
or  apply  to  any  railway,  except  that  the  company 
might  carry  their  wires  and  pipes  directly,  but  not 
otherwise,  across  any  railway,  so  as  not  to  damage 
or  be  likely  to  damage  the  railway  or  any  of  the 
works  connected  therewith.  A  railway,  pursuant 
to  the  provisions  of  the  act  incorporating  the  com- 
pany, crossed  a  public  road  on  the  level.  It  was 
held    that  the  telegraph  compamy  had  no  right  to 

1  Atlantic,  etc.  Tel.  Co.  v.  Chicago,  etc.  R.  Co.,  6  Bliss.  (IT.  S.)  158. 
The  provision  of  a  statute  (N.  Y.  Laws  1853,  ch.  471,  §  2),  authorizing 
telegraph  companies  to  erect  fixtures  upon  "any  of  the  public  roads" 
does  not  apply  to  the  roadway  of  a  railroad  company.  New  York  City 
&  Northern  R.  Co.  v.  Central  Union  Tel.  Co.,  21  Hun  (N.  Y.),  261. 
That  real  property  in  possession  of  a  bankruptcy  court  cannot  be  acquired 
by  proceedings  to  condemn  it  for  use  of  a  corporation,  afterwards  com- 
menced in  a  State  court,  was  held  in  Western  Union  Tel.  Co.  v.  Atlantic 
etc.  Tel.  Co.,  7  Bliss.  (U.  S.)  367. 

-  Southwestern  R.  Co.  v.  Southwestern,  etc.  Tel.  Co.,  46  Ga.  43;  s.  c, 
12  Am.  Rep.  585. 


24  COMPENSATION    FOE    USE   <>]-'    LAND. 

place  their  wires  and   poles  under  that  part  of  the 

public  road  where  it  was  crossed  by  the  railroad  on 
the  Level,  as  that  part  was  not  a  public  road  but  a 
railway  within  the  telegraph  company's  act.1 

6  22.  Additional  Burdens  on  the  Fee  by  Electrieal 
Companies. — It  has  been  held  in  New  York  that  the 
legislature  has  no  power  to  permit  the  erection  of 
poles  for  electric  lighting  wires  without  providing  for 
compensation  to  the  owners  of  premises  in  front  of 
which  the  poles  are  to  be  placed,  the  erection  of  such 
poles  impairing  the  use  of  light,  air,  and  free  access.2 
(  hi  a  similar  theory,  the  Supreme  Court  of  Pennsyl- 
vania has  held  that  the  laying  of  under-ground  yas 
pipes  in  a  country  highway  imposes  an  additional 
servitude  for  which  compensation  must  be  first  made 
to  the  land-owners.3  But  the  use  of  electricity  as 
the  motive  power  of  a  street  railroad  by  the  device 
of  the  overhead  wire,  does  not  create  a  new  and  ad- 
ditional burden  upon  the  street,  entitling  abutting 
lot-owners  to  compensation  before  such  change  is 
made,  or  to  an  injunction   to  prevent  such  change.4 

§  23.  Requisites  of  the  Petition  to  Condemn. — 
A  statutory  proceeding  to  condemn  land  for  a  pub- 
lic use  is  a  special  and  limited  proceeding  contrary 
to  the  course  of  the  common  law,  and  is  therefore 
subject  to  the  well  known  rule  applicable  to  such 
proceedings,  that  the  facts  which  give  the  court 
jurisdiction  to  proceed  must  appear  on   the  face  of 

1  Southeastern  Railway  Company  v.  European  and  American  Electric 
Telegraph  Company,  9  Exch.  363;  s.  c,  2  C.  L.  R.  467;  23  L.  J.  Exch. 
113. 

2  Tiffany  v.  United  States  Illuminating  Co.,  67  How.  Pr.  (N.  Y.)  73. 

3  Sterling's  Appeal,  111  Pa.  St.  35;  s.  c,  56  Am.  Rep.  246. 

4  Pelton  v.  East  Cleveland  R.  Co.,  22  Week.  L.  Bui.  67;  Halsey  v. 
Rapid  Transit  Street  R.  Co.  (X.  J.),  20  Atl.  Rep.  850  (able  opinion  by 
Van  Fleet,  V.  C). 


PETITION    TO    CONDEMN.  25 

the  proceedings.'  The  essential  conditions  named 
in  the  statute  as  authorizing  the  condemnation , 
must,  therefore,  appear  on  the  face  of  the  petition, 
unless  the  statute  itself,  or  some  other  governing 
statute,  prescribes  otherwise.  In  New  Jersey  the 
petition  to  condemn  the  right  of  way  over  a  turn- 
pike should  state  that  the  telegraph  company  is  to  be 
limited  in  its  right  to  erect  poles  to  a  space  of  speci- 
fied width  along  the  exterior  lines  of  the  pike,  and  the 
order  should  be  equally  definite.2  It  has  been  held 
in  the  same  State  that  proceedings  under  the  statute 
for  the  appointment  of  commissioners  to  appraise  the 
damages  to  be  sustained  by  a  land-owner  from  the 
erection  and  maintenance  of  telegraph  poles,  wires, 
etc.,  in  front  of  his  premises,  should  be  set  aside,  if 
neither  the  petition  nor  the  notice  indicates  the  loca- 
tion and  height  of  the  poles,  the  number  and  size  of 
the  cross  arms,  or  the  number  of  wires  they  will  sus- 
tain." If  the  proceeding  is  to  assess  the  damages  done 
to  private  property  by  the  erection  of  telephone  poles 
upon  it,  under  the  New  Jersey  statute/  the  petition, 
in  order  to  give  jurisdiction,  must  show  that  the 
company  was  organized  under  a  law  of  the  State; 
that  the  common  council  designated  the  streets  in 
which  the  poles  were  to  be  placed;  and  must  give  a 
proper  description  of  the  poles  and  the  premises. 
Nor  are  these  substantial  defects  cured  by  the  neg- 
lect of  the  land-owner  to  point  them  out  on  the  ap- 
pointment of  the  commissioners,  nor  by  his  consent 
to  the  appointment  of  commissioners.5 

1  Galpin  v.  Page,  IS  Wall.  (U.  S.)  350,  371. 

2  State  v.  American,  etc.  News  Co.,  43  N.  J.  L.  3S1. 

8  New  York,  etc.,  Tel.   Co.   v.   Broome,  50  N.  J.  L.  432;  s.  c,  14  Atl. 
Rep.  122;  12  Cent.  Rep.  587. 

*  N.  .1.  Rev.,  p.  1174;  N.  J.  Rev.  Supp.  p.  1022. 

5  Winter  v.  N.  Y.  etc.  Tel.  Co.,  51  N.  J.  L.  S3;  s.  c,  1G  Atl.  Rep.  188. 


26  COMPENSATION    FOE    USE    OF    LAND. 

v)  '1\.  Release  of  Damages  by  Acquiescence. — 
The  Supreme  Court  of  Michigan  holds  that  the  fact 
that  telegraph  and  telephone  poles  and  wires  pre- 
vented tlu1  extinguishment  of  a- fire  does  not  make 
the  company  owning  them  liable  for  the  loss,  where 
the  owner  of  the  building  burned,  on  whose  land 
they  stood,  had  built  by  the  side  of  them,  and  had 
permitted  a  tenant  to  use  one  of  the  wires,  and  had 
never  objected  to  them  in  any  way  before  the  fire. 
The  court,  distinguishing  a  number  of  cases,'  place 
their  conclusion  on  the  ground  of  consent  and 
adoption  by  the  plaintiff  of  the  offending  wires,  in 
the  following  language  in  its  opinion  by  Mr.  Justice 
Morse:  "These  cases  do  not  meet  the  question 
presented  here.  Failure  to  protest  against  a  nui- 
sance for  a  long  space  of  time  will  not  prevent  an 
action  to  abate  it.  upon  the  principle  that  each  day 
of  its  continuance  is  a  new  nuisance;  and  many 
courts  hold  that  the  right  to  maintain  a  nuisance 
can  never  be  gained  by  prescription.  But  I  can  find 
no  authority  anywhere,  and  I  should  doubt  its  being- 
good  law  if  T  did  find  it,  that  will  permit  a  man  to 
build  by  the  side  of  these  telegraph  and  telephone 
poles  and  wires,  without  any  protestor  demur  what- 
soever against  their  standing  there,  when  they  are 
on  his  own  land,  and  go  on  for  years,  without  find- 
ing any  fault  whatever,  and  allow  a  tenant  to  use 
one  of  the  wires  for  business  purposes  in  his  build- 
ing, and  then,  when  a  fire  arises,  and  the  poles  are 
found  to  hinder  the  firemen  in  their  work  of  extin- 
guishing it,  charge  up  to  the  corporation  maintain- 
ing these  poles  the  loss  occasioned  by  such  fire.    To 

1  Reid  v.Atlanta,  7;*  Ga.  523;  Gray  v.  Boston  Gas-Light  Co.,  114 
Mass.  149;  Philadelphia,  etc.  R.  Co.  v.  State,  20  Md.  157;  Pettis  v 
Johnson,  56  End.  139. 


EFFECT    OF    ACQUIESCENCE.  27 

do  this  would  be  to  violate  one  of  the  plainest  princi- 
ples of  justice;  and  the  law,  in  my  opinion,  will  not 
permit  it."1  The  conclusion  of  the  court,  doubtful  at 
best,  is  weakened  by  the  following  dissent  of  Mr.  Jus- 
tice Campbell  (since  deceased),  an  old  and  eminent 
judge  :  "Whatever  may  be  its  effect  as  a  circum- 
stance on  the  question  of  damages,  I  think  there 
can  be  no  doubt  of  the  right  of  any  land-owner  to 
sue  for  some  damages  for  any  encroachment  on  his 
property  rights.  Delay  in  complaining  may  some- 
times cut  off  a  right  to  sue  in  equity,  but  nothing 
short  of  statutory  limitations  can  bar  a  suit  at  law; 
and  where  a  wrongful  entry  or  intrusion  is  made 
without  license  or  permission,  no  license  can  be 
legally  determined  from  inaction." 

1  Chaffee  v.  Telephone,  etc.  Co.,  77  Mich.  625;  s.  c,  6  L.  R.  A.  455; 
43  N.  W.  Rep.  10G4. 


28  USE    OF   STREETS    AND    HIGHWAYS. 


CHAPTER   III. 

ISE    OF    STREETS    AND    HIGHWAYS  BY  THESE  COMPANIES. 

Article  I.        JUDICIAL  DECISIONS. 
Article  II.     STATUTES. 


Akticlk  1. — JUDICIAL  DECISIONS. 

SKCTION. 

•_'(;.     Power  of  Municipal  Corporation  to  Grant  Use  of  Streets  to  Elec- 
tric Railways. 

27.  Injunctions  Against  such  Use  by  Abutting  Property-Owners. 

28.  When  Telegraph  Poles  in  Streets  a  Public  Nuisance. 

•-").     Liability  of  Municipal  Corporation  for  Allowing  Telegraph  Poles 

to  be  Erected  in  its  Streets. 
:W.    Power  of  City  to  Designate  the.  Streets  to  be  Occupied. 
31.     Power  of  City  to  Remove. 
:',2.     Constitutionality  of  Statutes  Requiriug  Wires  to  be  put  Under 

Ground. 
:<:5.    Right  of  Telephone  Companies  to  Erect  Toles  in  the  Streets  of 

Cities. 
:!4.     Rights  of  Abutting  Property-Owners. 

35.  Invading  Private  Property — Cutting  Trees. 

36.  Revocation  of  License  by  Municipal  Corporation. 

37.  Struggles  by  These  Companies  for  the  Exclusive  Use   of  the 

Streets. 

38.  Continued :     Plaintiff,   an   Electric   Light  Company,  Organized 

by  a  Gas  Light  Company. 

39.  Question  as  Depending  upon  Priority  of  Occupancy. 

40.  Charter  Power  of  Control  Does  not  Extend  to  the  Granting   of 

Exclusive  Privileges. 

41.  Who  may  Question  Electric  Light  Privilege  (Granted  by  Munici- 

pal <  Corporation. 

42.  Charter  Power  to  Authorize  the  use  of  Electricity  as  a  Motive 

Power  for  Street  Railways. 


POWER    OF    MUNICIPAL    CORPORATIONS.  29 

43.  Injunction  by  Telephone  Company  Against   Electric  Railway 

Company. 

44.  Continued  :     Where  Both  Companies  use  the  Earth  for  a  Return 

Circuit. 

45.  Further  Observations  on  this  Subject. 

46.  Tax  for  the  Privilege  of  Using  City  Streets. 

47.  Reasonableness  of  License  Fee  for  Use  of  Streets. 

48.  Municipal  Control  as  to  the  Mode  of  Suspending  or  Laying  Tele- 

graph Wires. 

49.  Futility  of  Attempts  at  Statutory  Regulation. 

50.  Dangers  to  be  Provided  Against  by  Such  Regulations. 

51.  New  York  Board  of  Electrical  Control. 

52.  Mandamus  to  Compel  City  to  Designate  Places  for  Erecting 

Electric  Light  Poles. 

53.  Power  of  a  Municipal   Corporation   to  Own   an  Electric  Light 

Plant. 

§  26.  Power  of  Municipal  Corporation  to  Grant 
Use  of  Streets  to  Electric  Railways.  —  Municipal 
corporations  which  possess,  under  their  charters, 
general  control  over  their  streets,  have  the  power 
to  authorize  their  use  by  street  railway  companies 
whose  cars  are  propelled  by  an  overhead  wire  or 
trolley.  This  is  merely  putting  the  streets  to  a  new 
and  improved  use,  and  is  not  an  additional  servi- 
tude such  as  entitles  the  owner  of  the  fee  to  com- 
pensation.1 Nor  does  the  mere  fact  that  the  poles 
to  which  the  wires  are  attached  are  set  along  the 
borders  of  the  sidewalk  at  the  edge  of  the  street, 
entitle  him  to  an  injunction,  though  whether  this 
would  be  the  rule  if  they  were  set  in  the  sidewalk 
has  been  thought  more  doubtful,  since  the  sidewalk 
is  regarded  as  an  appendage  to  the  adjacent  land."' 
But  it  is  believed  that  whether  the  poles  are  placed 
in  the  sidewalk  or  not  is  immaterial,  so  far  as  the 
rights  of  the  abutting  owner  are  concerned. 

1  Ante,  §  22. 

2  Halsey  v.  Rapid  Transit  Street  R.  Co.  (N.  J.),  20  Atl.  Rep.  859. 

3  In  the  Missouri  telephone  cases  hereafter  cited  (post,  §  34),  the  poles 
were  in  fact  placed  in  the  sidewalk,  and  in  one  of  the  cases  in  a  very 
narrow  sidewalk,  and  yet  it  was  held  that  the  abutting  owner  had  no 
right  to  an  injnnction. 


30  USE    OF    STREETS    AND    HIGHWAYS. 

V)  27.       Injunctions   Against   Such  Use   by  Abutting* 

Property-Owners. — The  Supreme  Court  of  Michigan, 
on  an  application  for  an  injunction  by  a  property- 
owner,  refused  to  consider  the  question  whether  the 
State  had  conferred  the  power  upon  the  city  to 
authorize  the  use  of  its  streets  by  electric  railway 
companies,  deeming  it  a  question  resting  exclusively 
between  the  State  and  the  municipal  corporation; 
and  the  court,  on  grounds  equally  unsatisfactory, 
refused  to  consider  whether  such  a  use  of  the  streets 
was  an  additional  servitude  such  as  entitled  the 
abutting  property-owner  to  compensation;  but  re- 
fused an  injunction  on  the  ground  that  the  effect  of 
granting  it  would  work  an  injury  upon  the  railway 
company  much  greater  than  the  injury  which  the 
plaintiff  would  suffer  from  the  laying  and  operating 
of  their  railway,  and  that  he  had  an  adequate 
remedy  at  law.'  But  the  reasoning  of  Vice-Chan- 
cellor Van  Flack,  in  the  case  cited  in  the  preceding 
section,  concedes  that  if  the  use  of  the  street  is  an 
additional  servitude,  the  abutting  owner  is  entitled 
to  an  injunction  until  compensation  is  paid  or 
secured,  and  that  his  remedy  at  law  is  not  adequate 
in  a  sense  which  operates  to  refuse  him  an  injunc- 
tion. The  circumstances  in  which  the  Michigan 
Court  refused  injunctions  were  these:  In  one  case 
the  plaintiff  owned  a  vacant  piece  of  ground  lying 
along  a  street  and  extending  across  the  square  so  as 
to  front  upon  the  cross-streets.  It  was  chiefly  valu- 
able for  residence  purposes,  and  he  intended  to  build 
a  residence  thereon.  Without  objection  from  him, 
the  defendant  company  constructed  and  operated 

1  Potter  v.  Saginaw  Union  Street  R.  Co.  (Mich.),  47  N.  W.  Rep.  217. 
See  also  Barber  v.  Saginaw  Union  Street  R.  Co.,  Id.  219. 


INJUNCTIONS    BY    ABUTTING    OWNERS.  31 

an  electric  railway,  with  an  overhead  wire,  along- 
one  of  the  cross-streets,  and  was  about  to  put  into 
operation  a  similar  road  upon  the  side  street,  upon 
a  track  long  used  for  horse  cars,  fastening  its  cross- 
wires  to  electric  light  poles  already  erected,  so  that 
no  new  poles  or  tracks  could  be  placed  in  front  of 
the  premises.  The  defendant  had  expended  about 
$70,000  in  constructing  its  system  of  electric  rail- 
ways in  the  city.  There  was  evidence  that  there 
would  be  some  danger  to  men  and  animals  from  the 
electric  current,  and  from  the  more  rapid  running 
of  the  cars,  and  that  the  current  would  interfere 
with  telephone  wires  in  the  same  street.  The  court 
took  the  view  that  no  present  injury  was  shown  that 
the  apprehended  injury  was  too  remote,  and  that, 
under  all  the  circumstances,  the  plaintiff  was  not  en- 
titled to  an  injunction  against  the  operation  of  the 
road.1  In  the  other  case  it  appeared  that  the  com- 
plainant owned  premises  on  the  corner  of  two  streets; 
that,  at  the  corner  diagonally  opposite  said  prem- 
ises, the  railroad  turned  from  one  street  into 
another,  but  that,  assuming  the  complainant's 
premises  to  extend  to  the  middle  of  the  streets,  the 
railroad  nowhere  came  within  ten  feet  thereof.  The 
trolley  wire  curved  with  the  track,  and  was  over 
the  center  of  it.  When  the  suit  commenced,  a  sus- 
taining wire   extended   from  the  trolley  wire  at  the 

1  Potter  v.  Saginaw  Union  St.  R.  Co.  (Mich.),  47  N.  W.  Rep  217. 
The  court,  speaking  through  Champlin,  C.  J.,  said:  ,lIt  is  not  every 
case  of  injury  to  real  estate  of  a  permanent  character  that  equity  will 
enjoin,  and  the  court  will  look  to  all  the  facts  and  circumstances,  and 
grantor  withhold  relief  as  the  justice  or  equity  of  the  case  may  require." 
Citing  Hall  v.  Rood,  40  Mich.  4G;  Buchanan  v.  Log  Running  Co.,  48 
Mich.  3(i4;  S.C.,  12  N.  W.  Rep.  490;  City  of  Big  Rapids  v.  Comstock,  65 
Mich.  78;  s.  c,  31  N.  W.  Rep.  811;  Blake  v,  Cornwell,  65  Mich.  467; 
-.  c,  32  X.  W.  Rep.  803;  Miller  v.  Cornwell,  71  Mich.  270;  s.  c.  38  N. 
W.  Rep.  912. 


32  USE    OF    STREETS    A.\I>    HIGHWAYS. 

curve,  and  was  attached  to  a  pole  standing  between 
the  sidewalk  and  the  paved  street  in  front  of  com- 
plainant's lot.  This  pole  was  stayed  with  a  wire 
running  into  a  guy-post  set  in-  the  ground  in  front 
of  the  lot.  Thereafter  the  defendant  removed  the 
wires  and  poles.  The  court  held  that  a  decree  per- 
petually enjoining  the  defendant  from  erecting, 
within  the  street  limits,  on  and  in  front  of  the  com- 
plainant's premises  any  poles,  posts,  or  wires,  for 
operating  its  cars  by  electricity,  without  complain- 
ant's consent,  gave  the  complainant  all  the  relief 
she  was  entitled  to.1 

§  28.  When  Telegraph  Poles  in  Streets  a  Puhlic 
Nuisance. — In  cases  where  the  erection  of  telegraph 
poles  in  the  public  streets  is  not  authorized  by  the 
legislature,  if  they  are  permanently  erected  and 
maintained  in  the  public  streets,  at  such  places  and 
of  such  size,  dimensions  and  solidity  as  to  obstruct 
and  prevent  the  passage  of  carriages  and  horses,  or 
foot  passengers,  the  company  will  be  liable  in  an 
indictment  for  a  public  nuisance.2  This  view  can, 
of  course,  have  no  application  where  the  company 
places  its  poles  in  the  streets  under  the  authority  of  an 
act  of  the  legislature,"  though  the  rule  may  be  differ- 

1  Barber  v.  Saginaw  Union  St.  R.  Co.  (Mich.),  47  N".  W.  Rep.  219. 

2  Reg.  v.  United  Kingdom  Electric  Telegraph  Company,  31  L.  J.  M. 
C.166;  s.c.,10  W.  R.  538;  6  L.  T.  (N.S.)  378;  2  B.  A  S.  <U7,  u.;  !>  Cox, 
C.  C.  174.  It  was  further  held  in  this  case  that  even  if  the  poles  were 
not  placed  upon  the  hard  or  metalled  part  of  the  highway,  or  upon  a 
footpath  artificially  formed  upon  it,  or  although  sufficient  space  was  left 
for  the  public  traffic,  the  company  was  still  liable  to  a  conviction.     Ibid. 

3  It  may  be  stated,  as  a  general  rule,  that  a  statute  conferring  power  so 
to  use  the  public  streets  legalizes  what  might  otherwise  be  a  nuisance, 
but  only  to  the  extent  to  which  the  powers  are  conferred.  British  Cast 
Plate  Manufacturers  v.  Meredith,  4  T.  R.  794;  Sutton  v.  Clark,  6  Taunt. 
■2'.):  s.  C,  2  Thotnp.  Xeg.  807;  Rex  v.  Pease,  4  Barn.  &  Adolph.  30; 
Vaughan  v.  Taff  Vale  R.  Co.,  5  Hurl.  &  N".  679;  Whitehouse  v.  Fellows, 
lo  C.  B.  (N.  S.)  675;  s.  C,  30  L...T.  (C.  P.)  306;  Cracknell  v.  Thedford, 


INJUNCTION.  33 

ent  where  a  municipal  corporation  assumes  to  grant 
such  a  privilege.  But  although  the  company  may 
have  proceeded  without  the  authorization  of  the 
legislature,  it  would  not  necessarily  follow  that  an 
injunction  would  be  granted  even  at  the  suit  of  the 
public;  since,  as  just  seen,  the  right  can  be  deter- 

L.  R.  4  C.  P.  629 ;  Boulton  v.  Crowther,  4  Dowl.  &  Ry.  195 ;  s.  C,  2  Barn.  & 
Cress.  703;  Northern  Transportation  Co.  v.  Chicago,  99  U.S.  635;  s.  c, 
11  Chi.  L.  News,  255 ;  2  Thomp.  Neg.  692 ;  Smith  v.  Washington,  20  How. 
(U.  S.)  135;  Green  v.  Reading,  9  Watts  (Pa.),  384;  O'Connor  v.  Pitts- 
burg, IS  Pa.  St.  187;  Callender  v.  Marsh,  1  Pick.  (Mass.)  417;  Chicago 
v.  Rumsey,  87  111.  348;  s.  C,  10  Chi.  L.  News,  333;  Pumpelly  v.  Green 
Bay  Co..  13  Wall.  (U.  S.)  180 ;  Eaton  v.  Boston,  etc.  R.  Co.,  51  N.  H.  504. 
The  English  doctrine  broadly  is  that  an  authorization  of  Parliament  not 
only  makes  the  thing  lawful  and  hence  not  a  public  nuisance,  but  that  it 
also  prevents  any  right  of  action  for  damages  which  otherwise  might 
exist.  Those  cases,  of  course,  contain  no  suggestion  of  any  constitu- 
tional restraint  upon  Parliament,  the  theory  of  the  English  law  being 
that  Parliament  is  supreme.  The  American  cases,  on  the  contrary,  hold 
that  an  act  of  the  legislature  has  the  effect  of  preventing  any  right  of 
action  for  damages,  in  the  absence  of  constitutional  restraints.  Thus, 
where  the  act  authorizes  a  public  improvement  which  does  not  amount 
to  a  taking  of  private  property  for  a  public  use,  land -owners  who  are 
thereby  incidentally  injured  have  no  right  of  action  for  the  injury,  but 
it  is  damnum  absque  injuria.  But  if  the  constitution  of  the  State  pro- 
vides that  private  property  shall  not  be  taken  or  damaged  for  public  use 
without  just  compensation,  then  a  more  difficult  question  arises,  and  the 
rule  which  makes  the  statute  release  the  right  of  action  is  restrained  to 
cases  where  the  improvement  authorized  amounts  neither  to  a  taking 
nor  to  a  damaging  of  the  property  of  the  land-owner.  This  is  too  large 
a  subject  to  be  gone  into  in  a  special  work  of  this  kind.  Under  the  En- 
glish law  the  land-owner  who  is  damaged  has  compensation  if  provided 
for  in  the  statute  which  authorizes  the  work;  if  not,  he  has  nothing. 
Hammersmith  R.  Co.  v.  Brand,  L.  R.  4H.  L.  171;  Buccleugh  v.  Metro- 
politan Board  of  Works,  L.  R.  5  H.  L.  418.  The  English  theory  is  that 
statutes  giving  damages  in  general  terms  to  persons  injured  by  public 
works  which  the  statute  authorizes,  mean  to  give  damages  only  in  cases 
where  they  could  have  been  recovered  at  common  law,  unless  the  stat- 
ute in  express  terms  gives  other  damages.  In  other  words,  the  statute 
merely  changes  the  remedy,  or,  as  it  is  expressed  in  a  recent  English 
work,  ''merely  exchanges  the  statutory  right  to  compensation  in  respect 
of  the  legalized  nuisance  for  the  common-law  right  which,  but  for  the 
statute,  would  have  existed  for  damages  for  an  unauthorized  nuisance." 
Bower  &  WTebb  on  Electric  Lighting,  227.  The-learned  authors  cite  in 
illustration  of  this  principle,  Ricket  v.  Metropolitan  R.  Co.,  L.R.  2  H. 
L.  175;  Rothes  v.  Kincaldy,  L.  R.  7  App.  794. 

(3) 


34  USE    OF    STREETS    AND    HIGHWAYS. 

mined  in  a  legal  forum,  and  by  a  jury  trial.  This 
may  be  illustrated  by  a  case  where  a  telegraph  com- 
pany, without  any  parliamentary  powers,  laid  down 
their  wires  in  tubes  under  a  public  highway.  An 
information  and  bill  in  equity  were  filed  by  the  At- 
torney-General, complaining  of  those  acts  as  a  nui- 
sance to  the  public  and  as  an  invasion  of  the  rights 
of  the  owner  of  the  adjacent  land  in  the  soil  of  the 
road.  The  court  refused  to  grant  an  injunction 
until  the  legal  right  had  been  established.1 

§  29.  Liability  of  Municipal  Corporation  for  Al- 
lowing- Telegraph  Poles  to  he  Erected  in  its  Streets. 
— In  this  country  the  policy  has  generally  prevailed 
of  authorizing  this  use  of  the  streets  and  highways 
by  telegraph  companies  ;  and  it  has  been  held  that, 
where  such  poles  are  erected  in  the  highway  by  the 
consent  of  the  municipal  board  having  control  of 
the  highway,  e.  g.,  of  the  selectmen  acting  under 
the  authority  of  a  statute,  the  municipality  is  not 
liable.2  But  where  the  poles  were  erected  by  a  foreign 
corporation,  an  indictment  against  the  city  was  sus- 
tained, as  the  statute  gave  the  right  to  erect  such 
poles  in  the  street,  under  the  direction  or  authority 
of  the  highway  commissioner  and  aldermen  or  select- 
men of  the  city  or  town,  only  to  companies  incorpo- 
rated under  the  laws  of  the  commonAvealth.3  The 
prevailing  American  doctrine  is  that  a  municipal 
corporation  holds  its  streets  as  a  public  trust,  to  be 
maintained  for  the  free  and  safe  use  of  the  public  ; 
and  consequently,  where  the  city,  either  by  affirma- 
tive action   or  by   positive   neglect,  so   misconducts 

1  Att.-Gen.  v.  United  Kingdom  Electric  Telegraph  Company,  30  Beav. 
287;  8  Jur.  (N.  S.)  583;  31  L.  J.  Ch.  329;  10  W.  R.  167. 

2  Young  v.  Yarmouth,  9  Gray  (Mass.),  386. 

3  Com.  v.  Boston,  97  Mass.  558. 


LIABILITY    OF    MUNICIPAL    CORPORATION'.  35 

itself  in  the  discharge  of  this  trust  that  a  nuisance 
dangerous  to  travel  exists  in  its  streets,  in  conse- 
quence of  which  a  traveler,  without  negligence  or 
other  fault  on  his  part,  is  injured,  the  city  must  pay 
damages  to  him.1     Exceptions  to  this  rule  exist  in 

1  That  a  municipal  corporation  is  not  privileged  to  maintain  a  nui- 
sance, and  that  an  action  for  damages  may  be  maintained  against  it  for 
an  injury  arising  from  a  nuisance  where,  under  like  circumstances,  such 
action  could  be  maintained  against  an  individual,  is  shown  by  the  fol- 
lowing, among  many  other  cases:  Harper  v.  Milwaukee,  30  Wis.  365, 
372;  Brower  v.  New  York,  3  Barb.  (N.  Y.)  254;  Lawrence  v.  Fairhaven, 
5  Gray  (Mass.),  110;  O'Brien  v.  St.  Paul,  IS  Minn.  176;  Kobs  v.  Min- 
neapolis, 22  Minn.  159;  Bradt  v.  Albany,  5  Hun  (N.  Y.),  591;  People  v. 
Albany,  11  Wend.  (N.  Y.)  543;  Philadelphia  v.  Collins,  48  Pa.  St.  106; 
Browulow  v.  Metropolitan  Board,  16  C.  B.  (N.S.)  546,  (affirming S.  c,  13 
C.  B.  (N.  S.),  etc.  768).  That  a  municipal  corporation  cannot  permit  a 
private  person  or  corporation  so  to  use  property  of  the  municipal  corpora- 
tion as  to  create  a  nuisance  injurious  to  a  third  person  without  answer- 
ing to  him  in  damages,  is  shown  by  the  following,  among  many  other 
cases:  Lawrence  v.  Fairhaven,  5  Gray  (Mass.),  110;  Aurora  v.  Reed,  57 
111.  29;  Damour  v.  Lyons,  44  Iowa,  276;  Van  Pelt  v.  Davenport.  42  Iowa, 
308,  311;  Stack  v.  East  St.  Louis,  85  111.  377;  s.  c,  5  Cent.  L.  J.  385; 
Tallehassee  v.  Fortune,  3  Fla.  19;  Wendel  v.  Troy,  4  Keyes  (N.  Y.), 
261;  Baltimore  v.  Marriott,  9  Md.  160.  Contra,  Stackhouse  v.  Lafayette, 
26  Ind.  17.  Compare  Weeks  v.  Milwaukee,  10  Wis.  242;  Smaith  v.  Mil- 
waukee, IS  Wis.  63.  Among  the  cases,  almost  without  number,  assertiug 
the  rule  that  municipal  corporations  are  liable  to  individuals  for  injuries 
sustained  by  the  latter  without  fault  on  their  part,  through  nuisances  or 
defects  in  streets,  alleys,  sidewalks,  bridges,  etc.,  are  the  following: 
Weet  v.  Brockport,  16  N.  Y.  161,  note;  Hines  v.  Lockport.  50  N.  Y.  236 
(affirming  5  Lans.  (N.  Y.)  16);  s.  c,  41  How.  Pr.  (N.  Y.)  435; 
Requa  v.  Rochester,  45  N.  Y.  129;  Wilson  v.  Watertown,  5  N. 
Y.  S.  C.  (T.  &  C.)  579;  s.  C,  3  Hun  (N.  Y.),  508;  Peach  v. 
Utica,  10  Hun  (N.  Y.),  477;  Conrad  v.  Ithaca,  16  N.  Y.  158; 
Mosey  v.  Troy.  61  Barb.  (N.  Y.)  580;  Reinhard  v.  New  York, 
2  Daly  (N.  Y.),  243;  Wallace  v.  New  York,  2  Hilt.  (N.  Y.)  440; 
S.  C,  18  How.  Pr.  (N.  Y.)  169;  Davenport  v.  Ruckman,  37  N.  Y,  568; 
Clemence  v.  Auburn,  66  N.  Y.  334;  Nims  v.  Troy,  59  N.  Y.  500;  Ring 
v.  Cohoes  County,  13  Hun  (N.  Y.),76;  Weightman  v.  Washington,  1 
Black  (U.  S.),  39;  Chicago  v.  Robbins,  2  Black  (U.  S.),  41S;  Nebraska 
City  v.  Campbell,  2  Black  (U.  S.),  591;  Hutson  v.  New  York,  9  N.  Y. 
163;  s.  c,  Seld.  Notes,  20S;  5  Sandf.  S.  C.  (N.  Y.)  287;  Omaha  v.  Olm- 
stead,  5  Neb.  446;  Topeka  v.  Tuttle,  5  Kan.  311;  Atchison  v.  King,  9 
Kan.  550;  Ottawa  v.  Washabaugh,  11  Kan.  124;  Wyandotte  v.  White,  13 
Kan.  191;  Smith  v.  Leavenworth,  15  Kan.  81;  Baltimore  v.  Marriott,  9 
Md.  160 :  Baltimore  v.  Pendleton,  15  Md.  12 ;  Bell  v.  West  Point,  51  Miss. 


36  USE    OF    STREETS    AND    II  I(!  II  W  A  VS. 

particular  jurisdictions,  which  there  is  no  space 
lure  to  note.  Nearly  all  the  American  municipal 
corporations  have  power  under  their  charters  to 
abate  nuisances  ;  and  while  thBre  is  a  principle  that 
such  corporations  are  not  liable  for  damages  flowing 
from  a  mere  non-exercise  of  governmental  powers,1 

262,  per  Peyton,  C.  J.;  Griffin  v.  Williamson,  6  W.  Va.  312;  Erie  v. 
Sehwingle,  22  Pa.  St.  3S8 ;  Kensington  v.  Wool,  10  Pa.  St.  93 ;  McLaugh- 
lin v.  Corry,  77  Pa.  St.  109.  In  Pennsylvania,  the  rule  extends  to  town- 
ships, boroughs,  and  counties  also.  Dean  v.Milford,  5  Watts  &  S.  (Pa.) 
545;  Pittsburg  v.  Grier,  22  Pa.  St.  54:  Allentown  v.  Kramer,  73  Pa.  St. 
406;  Humphries  v.  Armstrong  County,  56  Pa.  St.  204;  Hey  v.  Philadel- 
phia, si  Pa.  St.  44.  See  also  in  support  of  the  rule,  Shoolbred  v.  Charles- 
ton, 2  Bay  (S.C.),G3;  Browning  v.  Springfield,  17111. 143;  Alton  v.  Hopei 
68  111.  167;  Jolietv.  Verley,  35  111.  59;  Springtield  v.  Le  Claire,  49  111. 
176;  Chicago  v.  Smith,  48  111.107;  Centralia  v.  Scott,  59  111.129;  Me- 
chanicsburg  v.  Meredith,  54  111.  84;  Peru  v.  Frencb,  55  111.317;  Sterling 
v.  Thomas,  60  111.  264;  Cleveland  v.  St.  Paul,  18  Minn.  279;  Lindholm 
v.  St.  Paul,  19  Minn.  245;  Moore  v.  Minneapolis,  19  Minn.  300;  Shartle 
v.  Minneapolis,  17  Minn.  308;  Rusch  v.  Davenport,  6  Iowa,  44:5;  Collins 
v.  Council  Bluffs,  32  Iowa,  324;  Rowell  v.  Williams,  29  Iowa,  210;  Man- 
derschid  v.  Dubuque,  29  Iowa,  73;  s.  C,  25  Iowa,  108;  Lowrey  v.  Del- 
phi, 55  Iud.  250;  Bassett  v.  St.  Joseph,  53  Mo.  290;  Smith  v.  St.  Joseph, 
45  Mo.  449;  Blake  v.  St.  Louis,  40  Mo.  569;  Bowie  v.  Kansas  City,  51 
Mo.  454 ;  Jones  v.  New  Haven,  34  Conn.  1 ;  Smoot  v.  Wetumpka,  24  Ala# 
112;  Atlanta  v.  Perdue,  53  Ga.  607;  Milledgeville  v.  Cooley,  55  Ga.  17; 
Montgomery  v.  Gilner.  33  Ala.  116;  Dargan  v.  Mobile,  31  Ala.  469;  Cen- 
terville  v.  Woods,  57  Ind.  192;  Chicago  v.  Herz,  87  111.  541;  Barnes  v. 
District  of  Columbia,  91  U.  S.  540;  Chicago  v.  Fowler,  60  111.  322;  Tal- 
lehassee  v.  Fortune,  3  Fla.  19;  Nevins  v.  Rochester  (N.  Y.  Ct.  App. 
1879),  19  Alb.  L.  J.  315;  Mendota  v.  Fay,  1  Bradw.  (111.)  418;  Patterson 
v.  Colebrook,  29  N.  H.  94;  Newbury  v.  Connecticut,  etc.  R.  Co.,  25  Vt. 
377;  Holmes  v.  Hamburg,  47  Iowa,  348;  The  State  v. Strong,  25  Me.  297; 
State  v.  Cumberland,  6  R.  I.  496;  Lombard  v.  Chicago,  4  Biss.  (U.  S.) 
460;  Littlefield  v.  Norwich,  40  Conn.  406;  Dewey  v.  Detroit,  15  Mich. 
307;  Nashville  v.  Brown,  9  Heisk.  (Tenn.)  1. 

1  Kelley  v.  Milwaukee,  18  Wis.  83;  Goodrich  v.  Chicago,  20  111.  445; 
Griffin  v.  New  York,  9  N.  Y.  456;  Dewey  v.  Detroit,  15  Mich.  307;  Hen- 
derson v.  Sandefur,  11  Bush  (Ky.),  550;  McCormack  v.  Patchiu,  53  Mo. 
33;  Macy  v.  Indianapolis,  17  Ind.  267;  Detroit  v.  Beckman,  34  Mich. 
125;  Lansing  v.  Toolan.  37  Mich.  152;  Pontiac  v.  Carter,  32  Mich.  164; 
Carroll  v.  St.  Louis,  4  Mo.  App.  191;  Saxton  v.  St.  Joseph,  60  Mo.  153; 
Wilson  v.  New  York,  1  Denio  (N.  Y.),  595;  Rochester  White  Lead  Co. 
v.  Rochester,  3  N.  Y.  463;  s.  c,  2  Thomp.  Neg.  673;  Martin  v.  Brook- 
lyn, 1  Hill  (N.  Y.),  545;  Mills  v.  Brooklyn,  32  N.  Y.  489;  Donohue  v. 


LIABILITY    OF    MUNICIPAL     CORPORATION.  37 

yet  it  is,  according  to  some  holdings,  indictable 
for  failing  to  exercise  its  power  to  abate  nui- 
sances,1 and  according  to  others,  it  is  liable  in 
damages  to  private  persons  for  a  like  failure.2  In 
most  of  the  cases  which  will  be  found  in  the  books 
of  reports  under  this  head,  in  which  the  city  has 
been  held  liable,  the  nuisance  has  been  a  defect  in 
its    traveled  streets,   alleys,    sidewalks  or  bridges ; 

New  York,  3  Daly  (N.  Y.),65;  Child  v.  Boston,  4  Allen  (Mass.),  41; 
Jones  y.  New  Haven,  34  Conn.  1 ;  Kavanaugb  v.  Brooklyn,  38  Barb.  (N. 
Y.)  232;  Stone  v.  Augusta,  46  Me.  127. 

1  People  v.  Albany,  11  Wend.  (N.  Y.)  539;  State  v.  Shelby ville,  4  Sneed 
(Tenn.),  176.  See  Hill  v.  State,  Id.  443.  The  contrary  is  held  in  some 
jurisdictions.  State  v.  Burlington,  36  Vt.  521 ;  Paris  v.  People,  27  111.  74. 
An  indictment  is  the  ancient  and  usual  remedy  for  the  failure  of  a  munici- 
pal corporation  to  perform  its  duty  of  keeping  its  streets  and  highways 
in  repair.  Austin's  Case,  Vent.  187;  Rex  v.  Ragley,  12  Mod.  409;  Rex 
v.  Great  Broughton,  5  Burr.  2700;  Rex  v.  Sheffield,  2  T.  R.  106;  Rex  v. 
Leake,  5  Barn.  &  Adol.  469;  s.  C,  2  Nev.  &  M.  583:  Rex  v.  Edmonton, 
1  Moo.  &  R.  24;  Reg.  v.  Brightside  Bierlow,  13  Q.  B.  933;  s.  c,  4  New 
Sess.  Cas.  47;  14  Jur.  174;  Reg.  v.  Midville,  4  Q.  B.  240;  S.  c,  3  Gale  & 
Dav.  522;  Rex  v.  Hatfield,  4  Barn.  &  Aid.  75;  People  v.  Cooper,  6  Hill 
(N.  Y.),  516:  Rexv.  Skinner,  5  Esp.  219;  Rex  v.  West  Riding  of  York- 
shire, 2  H.  Black.  685;  s.  C,  5  Burr.  2595;  2  East,  342;  2  Inst.  201,  700; 
Com.  Dig.  tit.  "Chimin,"  B,  1;  Rex  v.  Nottingham,  2  Lev.  112;  State 
v.  Barksdale,  5  Humph.  (Tenn.)  154;  State  v.  Murfreesboro,ll  Humph. 
(Tenn.)  217;  State  v.  Loudon,  3  Head  (Tenn.),  263;  Davis  v.  Bangor, 
42  Me.  522;  State  v.  Gorham,  37  Me.  451 ;  Commonwealth  v.  Springfield, 
7  Mass.  9;  Commonwealth  v.  Petersham,  4  Pick.  (Mass.)  119;  State  v. 
Whittingham,  7  Vt.  391 ;  State  v.  Fletcher,  13  Vt.  124;  State  v.  Alburgb, 
23  Vt.  262;  State  v.  Fryeburg,  15  Me.  405;  State  v.  Stiong,  25  Me. 
297;  State  v.  Milo,  32  Me.  57;  State  v.  Dover,  ION.  H.  394;  State  v. 
Gilmanton,  14  N.  11.467;  State  v.  Canterbury,  28  N.  H.  195;  State 
v.  Northumberland,  44  N.  H.  628;  State  v.  Cumberland,  6  R.  |I.  496; 
State  v.  Cumberland,  7  R.  I.  75.  In  Maine  and  New  Hampshire, 
towns  are  likewise  amenable  to  a  proceeding  by  information  for  not 
opening  and  repairing  highways.  State  v.  Kittery,  5  Me.  254;  State  v. 
Raymond,  27  N.  H.  388;  State  v.  Concord,  20  N.  H.  295.  A  statute  of 
Maine  gave  an  indictment  to  recover  a  forfeiture  of  not  exceeding  $1,000, 
where  a  person  was  killed  by  a  defect  in  the  highway.  State  v.  Bangor, 
30  Me.  341. 

2  In  such  cases  the  words  "power"  and  "authority"  in  the  charter  of 
a  city  in  respect  of  the  abatement  of  nuisances,  may  well  be  held  to 
mean  duty  and  obligation.  Baltimore,  etc.  R.  Co.  v.  Marriott.  !i  Md.  160 ; 
Campbell  v.  Montgomery,  53  Ala.  527. 


38  USE    OF    STREETS    AND    HIGHWAYS. 

but  the  doctrine  has  been  held  equally  applicable  in 
the  case  of  a  nuisance  in  the  street  of  a  city  result- 
ing in  injury  to  adjacent  property — as  where,  by 
reason  of  a  gutter  getting  out  of  order,  the  lots  of  a 
land-owner  are  flooded  ;'  or  where  the  city  permits 
market  stalls  to  remain  in  a  long  improved  and 
travelled  street  to  the  detriment  of  adjacent  pro- 
prietors.2 In  such  a  case  the  injured  person  may 
maintain  an  action  either  against  the  city  or  against 
the  more  direct  author  of  the  nuisance.  If,  in  such 
a  case,  he  sustains  an  action  against  the  city,  and 
the  city  satisfies  the  judgment,  it  may  maintain  an 
action  against  the  author  of  the  nuisance  for  reim- 
bursement, unless  the  city  has  afnrmativety  author- 
ized the  nuisance:  the  conception  being  that  they 
do  not  stand  in  pari  delicto,  the  case  presenting  an 
exception  to  the  well  known  rule  that  the  law  will 
not  enforce  contribution  among  tort-feasors.3  But 
where  the  citj^  has  authorized  the  nuisance,  and  has 
been  adjudged  to  pay  damages  therefor,  it  has  no 

1  Alton  v.  Hope.  68  111.  167. 

2  St.  John  v.  New  York,  3  Bosw.  (X.  Y.)  483;  S.  C,  6  Duer  (X.  YT.), 
315. 

3  Lowell  v.  Boston,  &c.  R.  Co.,  23  Pick.  (Mass.)  24;  Lowell  v.  Short, 
4  Cush.  (Mass.)  275;  Milford  v.  Holbrook,  9  Allen  (Mass.),  17;  Boston 
v.  Worthington,  10  Gray  (Mass.),  496;  Woburn  v.  Boston,  etc.  R.  Co., 
109  Mass.  283;  Woburn  v.  Hensbaw,  101  Mass.  193;  West  Boylston  v. 
Mason,  102  Mass.  341;  Westfielcl  v.  Mayo,  122  Mass.  100;  Centerville  v. 
Woods,  57Ind.  192;  Portlandv.  Richardson,  54  Me. 46;  Lowell  v.  Spauld- 
ing,  4  Cush.  (Mass.)  277;  Littleton  v.  Richardson.  34  X.  H.  179;  Chi- 
cago v.  Robbins,  2  Black  (U.  S.),  418;  Robbins  v.  Chicago,  4  Wall.  (U. 
S.)  657;  Rochester  v.  Montgomery,  9  Huu  (N.  Y.),  394  (affirmed,  72  N. 
Y.  65) ;  Brooklyn  v.  Brooklyn  City  R.  Co.,  47  X.  YT.  475;  Independence 
v  Jeckel,  38  Iowa,  427;  Severin  v.  Eddy,  52  111.  189;  Xorwich  v.  Breed, 
30  Conn.  535.  The  rule  is  the  same  where,  in  such  a  case  the  city  paid 
an  undoubted  liability  of  this  kind  without  suit.  Swansey  v.  Chase,  16 
Gray  (Mass.),  303.  Upon  like  grounds,  a  person  who  has  unlawfully 
injured  the  public  street  of  a  town,  aud  has  refused  to  repair  the  injury 
after  demand  by  the  town,  must  pay  to  the  town  the  cost  of  such  repairs. 
Centerville  v.  Woods,  57  Ind.  192. 


DESIGNATION    OF    STREETS.  39 

action  for  damages  over  against  the  party  whom  it 
has  authorized  to  erect  the  nuisance ;  for,  in  such 
a  case,  it  is  in  pari  delicto  with  him.  Thus,  an  elec- 
tric light  pole  in  a  village  street  was  adjudged  to  be 
a  nuisance  as  to  its  location,  in  an  action  against  the 
village  for  personal  injuries  occasioned  thereby. 
The  pole  was  erected  by  an  electric  light  company 
under  a  contract  with  the  village,  which  approved 
of  its  location.  It  was  held  that  the  village,  and 
the  successor  to  the  electric  light  company,  were  in 
pari  delicto,  and  that  the  former  was  not  entitled  to 
contribution  from  the  latter,  on  account  of  the  dam- 
ages recovered  against  it.1 

§  30.  Power  of  City  to  Designate  the  Streets  to 
be  Occupied. — Such  being  the  power  usually  pos- 
sessed by  municipal  corporations  over  their  streets, 
it  would  seem  equally  to  follow,  without  the  aid  of 
any  express  statute,  but  of  course  in  the  absence  of 
any  prohibitory  one,  that  such  corporation  has  the 
power  to  prescribe  the  streets  on  which  such  poles 
or  posts  may  be  located,  to  prescribe  their  height, 
dimensions  and  distance  apart,  and  the  manner  of 
extending  wires  thereon,  in  such  manner  as  to  pre- 
vent them  from  becoming  a  nuisance  to  public  travel, 
but,  of  course,  with  the  proviso  in  all  cases  that  the 
regulation  should  not  be  unreasonable.  Statutes 
have  been  enacted  expressly  conferring  this  power. 
Thus,  by  a  recent  statute  of  New  Jersey,  common 
councils,  township  committees,  and  other  legisla- 
tive bodies  of  cities,  town,  etc.,  are  required  to 
give  telegraph  or  telephone  companies  a  written  des- 
ignation of  streets  or  highways  in  which  posts  or 
poles  of  such  companies  may  be  placed,  and  the  man- 

i  Geneva  v.  Brush  Electric  Co.,  50  Hun  (X.  Y.),  581;  s.  c,  20  N.  Y. 
St.  Rep.  424;  3  N.  Y.  Supp.  595. 


40  USE    OF    STREETS    AND    HIGHWAYS. 

ner  of  placing  them.1  The  next  section  provides 
that  "  it  shall  be  unlawful  for  any  telegraph  or  tele- 
phone company  to  construct,  rebuild,  or  extend  any 
telegraph  or  telephone  line,  or-to  erect  any  posts  or 
poles  therefor  in  any  city,  town,  village,  or  borough, 
having  the  powers  enumerated  in  the  first  section 
of  this  act,  without  first  obtaining  such  designation 
of  their  route,  and  then  only  upon  the  street,  streets, 
or  highways  so  to  be  designated."2  Under  an  earlier 
statute  of  the  same  State,3  which  provided  that  no 
posts  or  poles  should  be  erected  in  an}'  street  of  any 
incorporated  city  or  town  without  first  obtaining 
from  such  municipality  a  designation  of  the  street  in 
which  they  should  be  placed,  and  the  manner  of 
placing  them,  and  which  made  it  the  duty  of  the 
municipal  authorities  to  make  the  designation  on  the 
application  of  a  telegraph  company — it  was  held  that 
the  designation  by  the  authorities  was  a  'prerequisite 
to  the  erection  of  poles.4  But  under  this  statute  the 
authorities  of  an  incorporated  town  cannot,  before 
prescribing  regulations  for  the  elevation  at  which 
such  wires  shall  cross  the  streets,  treat  as  a  nuisance 
such  a  use  of  the  streets  for  that  purpose  as  in  no 
way  endangers  their  full,  free  and  safe  use  for  the 
purposes  of  public  travel.5 

§  31.  Power  of  City  to  Remove. — If,  as  justseen, 
a  municipal  corporation  is  also  indictable  for  per- 
mitting a  nuisance  to  exist  in  its  streets,  a  fortiori, 

1  N.  J.  Act  of  April  1,  1887,  Laws  1887,  cb.  87,  Sec.  1. 

*  Ibid.  §  2. 

3  N.  J.  Rev.,  p.  1174;  N.  J.  Pamph.  Laws,  1881,  p.  201. 

4  New  York,  etc.  Tel.  Co.  v.  East  Orange,  42  N.  J.  Eq.  490;  s.  c,  8 
Atl.  Rep.  289;  6  Cent.  Rep.  547;  10  East  Rep.  909.  A  permission  given  by 
tbe  rood  board  does  not  obviate  tbe  necessity  of  a  formal  designation  by 
the  regular  authorities.     Ibid. 

*  American  Union  Tel.  Co.  v.  Harrison,  31  N.  J.  Eq.  627. 


PUTTING    WIRES    UNDER    GROUND.  41 

it  has  power  to  remove  the  nuisance.  That  such 
power  exists  in  municipal  corporations,  charged  by 
their  charters  or  by  statute  with  the  care  and  repara- 
tion of  their  streets,  is  well  settled  ;'  and  hence, 
where  the  right  of  a  private  corporation  to  erect 
telegraph  poles  in  the  street  of  a  municipality  is 
doubtful,  an  injunction  will  not  be  granted  to  re- 
strain the  municipality  from  removing  them.2 

§  32.  Constitutionality  of  Statutes  Requiring 
Wires  to  be  put  Under  Ground. — A  statute  which 
requires  corporations  owning  telegraph,  telephone, 
electric,  or  other  wires  or  cables,  to  remove  them 
from  the  surface  of  the  streets  of  cities  having  a 
population  of  500,000  or  over,  and  to  place  them  un- 
der the  ground,  and,  in  the  event  of  their  not  doing 
so,  empowering  the  city  to  make  such  removal  at 
their  expense;  which  further  provides  that  three 
commissioners  shall  be  appointed  to  enforce  the 
provisions  of  the  statute  by  causing  the  removal  of 
wires  and  cables ;  which  imposes  on  the  com- 
panies the  duty  of  filing  with  such  commissioners  a 
map  showing  the  streets  or  highways  which  the  com- 
panies desire  to  use,  and  the  general  location,  di- 
mensions, and  course  of  the  underground  conduits 
desired  to  be  constructed  ;  and  which  forbids  the 
construction  of  such  conduits,  unless  the  plan  of 
construction  is  approved  by  such  commissioners — is 
not,  in  the  view  of  the  Court  of  Appeals  of  New 
York,  unconstitutional.  The  court  hold  that  such  a 
statute  does  not  impair  existing  franchises,  but 
merely  regulates  the  mode  of  their  enjoyment,  to 
the  end  that  due  regard  may  be  had  to  the  rights  of 

1  1  Dill.  Munc.  Corp.,  4th  ed.,  §  374. 

2  New  York,  etc.  Tel.  Co.  v.  East  Orange,  42  N.  J.  Eq.  490;  S.  C,  8 
Atl.  Rep.  289;  6  Cent.  Rep.  547;  10  East.  Rep.  909. 


42  USE    OF    STREETS    AND    HIGHWAYS. 

others,  and  in  such  a  way  that  the  wires  and  cables 
shall  cease  to  be  a  public  nuisance,  and  be  enjoyed 
in  such  a  maimer  as  to  produce  as  little  inconven- 
ience and  danger  to  the  public  as  possible.1  The 
same  statute  was  challenged  in  the  Circuit  Court  of 
the  United  States  before  Mr.  Circuit  Judge  Wallace, 
and  he  held  that  the  subject  was  sufficiently  doubt- 
ful to  warrant  him  in  refusing  an  injunction  until 
the  question  should  be  settled  by  the  Supreme  Court 
of  the  United  States.2 

§  33.  Right  of  Telephone  Companies  to  Erect 
Poles  in  Streets  of  Cities. — This  question  must,  of 
course,  depend  upon  the  state  of  the  statute  law  of 
the  State,  upon  the  provisions  of  the  charter  of  the 
particular  city,  or,  if  the  city  is  organized  under  a 
general  law,  upon  the  provisions  of  that  law,  and 
also  upon  the  provisions  of  any  city  ordinances  that 
may  have  been  passed  in  pursuance  of  authority 
conferred  upon  the  legislature  of  the  city  by  its 
charter  or  governing  statute.  Statutes  have  been 
enacted  in  some  of  the  States  requiring  the  consent 
of  the  municipal  authorities  ;  in  others,  the  charters 
of  municipal  corporations  give  them  power  to  regu- 
late such  companies.  But  where  the  State  itself, 
by  a  statute,  authorizes  the  use  of  the  streets  of 
towns  and  cities  for  such  purposes,  it  is  competent 
for  the  municipality  to  impose  general  conditions 
or  restrictions  upon  the  grant,  and  if  such   restric- 

1  People  v.  Squire,  107  X.  Y.  593;  s.  C,  1  Am.  St.  Rep.  894,  the  court 
citiug,  as  to  the  nature  of  police  power:  Corn,  v,  Alger,  7  Cash.  (Mass.) 
53,  S4:  Thorpe  v.  Rutland,  etc.R.  Co.,  27  Vt.  140,  149;  s.  C.  62  Am.  Dec. 
625;  Presbyterian  Church  v.  Xew  York,  5  Cow.  (X.  Y.)  538;  P-.-ople  v. 
Morris.  13  Weud.  (X.  Y.)  325. 

-  Western  Union  Tel.  Co.  v.  Board  of  Electric  Control,  3S  Fed.  Rep. 
552;  s.  C,  5  Rail.  &  Corp.  Law  J.  382.  See  comments  on  this  case,  23 
Am.  Law  Rev.  431. 


TELEPHONE    POLES    IN    STREETS.  43 

tions  are  attempted,  the  proper  municipal  board 
will  be  compelled  by  mandamus  to  permit  the  erec- 
tion of  the  poles  without  restriction.1 

§  34.  Rig-hts  of  Abutting1  Property  Owners.— 
Telephone  poles  manifestly  stand  on  the  same  foot- 
ing in  respect  of  this  question  as  telegraph  poles;" 
and,  although  the  act  of  Congress  elsewhere  set 
out"  does  not  apply  to  telephone  companies,  yet,  if 
it  did,  it  would  not  create  any  distinction  in  respect 
of  the  question  under  consideration;  for,  as  already 
seen.  Congress  is,  equally  with  the  State  legis- 
latures, restrained  from  authorizing  the  taking  of 
private  property  for  public  use  without  just  com- 
pensation.* In  its  application  to  the  poles  of 
telephone  companies,  the  question  has  elicited  a 
division  of  judicial  opinion.  In  Missouri,  telephone 
and  telegraph  companies  are  authorized  by  statute 
to  set  their  poles  and  their  fixtures  along  and  across 
any  of  the  public  roads,  streets  and  waters  of  the 
State,  in  such  a  manner  as  not  to  incommode  the 
public  in  the  use  of  such  roads,  streets  and  waters.5 
It  has  been  held  in  that  State,  under  this  statute, 
and  under  the  charter  of  the  city  of  St.  Louis  and 
ordinances  passed  in  pursuance  thereof,  that  a  tele- 
phone company  might  lawfully  erect  its  poles  in 
the  streets  of  that  city  at  places  designated  by  the 
board  of    public  improvements,  and   that  an  abut- 

1  State  v.  Flad,  23  Mo.  App.  185.  The  New  Jersey  statutes,  in  requiring 
the  consent  of  the  town  authorities  to  the  placing  of  telegraph  poles  in 
the  streets,  are  construed  to  require  this  consent  in  the  case  of  a  town- 
ship where  the  ways  are  streets  and  not  roads.  Broome  v.  New  York, 
etc.  Telephone  Co",  49  N.  J.  L.  624. 

2  Post.  §  93. 

3  Ante,  §  2. 

4  Ante,  §  17. 

6  Kev.  Stat.  Mo.  1S79,  §  879. 


44  USE    OF    STREETS    AND    HIGHWAYS. 

ting  lot-owner  could  not  restrain  them  from  so  doing 
by  an  injunction.1  These  decisions  proceed  on  the 
vieAv  that  the  imposition  of  such  an  additional  serv- 
itude on  the  streets  is  not  inconsistent  with  its 
original  dedication,  in  such  a  sense  as  to  make  such 
structures  a  nuisance.  Or,  as  was  said  by  Lewis,  P. 
J.,  in  one  of  the  cases  just  cited:  "The  dedication 
or  condemnation  of  public  streets  in  a  city  does  not 
limit  their  use  to  the  purpose  of  passways  for  persons 
and  vehicles,  but  extends  to  every  use  which  may 
advance  the  public  comfort  and  convenience,  within 
the  legitimate  sphere  of  municipal  regulation . "  That 
the  particular  use  was  not  in  contemplation  when 
the  dedication  was  made  is  of  no  consequence!"2 
The  question  of  the  right  of  abutting  property 
owners  to  an  assessment  of  damages  for  the  impo- 
sition of  the  additional  servitude  upon  the  street 
was  not  considered.  So,  the  Supreme  Court  of 
Louisiana  have  taken  the  view  that  the  legislature 
can  authorize  the  use  of  public  ways  by  a  telegraph 

1  Gay  v.  Mutual  Union  Tel.  Co.,  12  Mo.  App.  485;  Julia  Building 
Association  v.  Bell  Telephone  Co.,  13  Mo.  App.  477;  s.  c,  affirmed,  88 
Mo.  258;  57  Am.  Rep.  39S,  Henry,  C.  J.,  and  Sherwood,  J.,  dissenting. 
The  same  view  has  been  taken  by  the  Supreme  Court  of  the  District  of 
Columbia  in  respect  of  telegraph  companies.  That  court  holds  that  the 
right  of  telegraph  companies  to  lay  lines,  etc.,  is  the  same  in  streets  of 
the  District  of  Columbia  as  over  post-roads  generally,  under  U.  S.  act 
of  July  24,  1866.  Xor  does  the  joint  resolution  of  March  3,  1863,  regu- 
lating the  construction  of  lines  in  the  District,  limit  the  power.  And 
when  the  District  commissioners  have  authorized  the  construction  of  an 
overbead  line  along  a  business  street  with  poles  150  feet  apart,  the  con- 
struction will  not  be  enjoined  at  the  instance  of  a  few  storekeepers  who 
consider  it  a  nuisance.  Hewett  v.  Western  Union  Tel.  Co.,  4  Mackey 
(D.  C),  424;  s.  C,  54  Am.  Rep.  .284. 

2  Julia  Building  Association  v.  Bell  Telephone  Co.,  13  Mo.  App. 
477,  481.  "It  is  perfectly  consistent  with  the  purposes  for  which  streets 
are  acquired,  that  the  public  authorities  should  adapt  them,  in  their 
use,  to  the  improvements  and  conveniences  of  the  age."  Van  Fleet, 
V.  C,  in  Halsey  v.  Rapid  Transit  Street  R.  Co.  (X.  J.),  20  Atl.  Rep. 
860;  citing  Railroad  Co.  v.  Newark,  10  N.  J.  Eq.  352,  359. 


INVADING    PRIVATE    PROPERTY.  45 

company  for  the  location  of  its  poles,  notwith- 
standing the  dissent  of  abutting  land-owners.1  The 
Supreme  Court  of  Minnesota  have  affirmed  the  con- 
trary doctrine  in  a  particular  case  by  an  equally 
divided  court.2  In  New  Jersey  the  same  view  has 
been  taken  ;  and  it  has  been  held  that  a  telephone 
company  may  be  compelled  by  mandatory  injunc- 
tion to  remove  its  poles  from  the  highway  in  front 
of  the  premises  of  an  individual,  there  having  been 
neither  consent  on  his  part  nor  a  condemnation, 
and  the  company  justifying  under  permission  from 
a  public  road  board.3 

§  35.  Invading1  Private  Property  —  Cutting- 
Trees. — But  even  assuming  that  the  State,  or  a 
municipal  corporation  under  the  authority  of  its 
charter  or  some  statute,  has  the  power  to  grant 
a  right  of  way  over  the  streets  of  the  municipality 
in  disregard  of  any  supposed  rights  of  abutting 
property  owners,  yet  such  a  grant  manifestly 
cannot  confer  the  right  of  directly  invading  or 
trespassing  upon  private  property;  nor  could  the 
destruction  of  private  property  for  such  a  purpose 
be  authorized  by  the  State,  under  American  con- 
stitutions that  provide  for  the  pa}7ment  of  just 
compensation.  Accordingly,  it  has  been  held  that 
such  a  grant  does  not  confer  the  right  to  cut  the 
limbs  of  trees,  merely  because  by  doing  so  the  tele- 
phone company  can  the  more  easily  construct  its 
line,  and  this  although   the  trees  project  over  the 

1  Irwin  v.  Great  Southern  Telephone  Co.,  37  La.  An.  63  (Manning, 
J.,  dissenting). 

2  Willis  v.  Erie  Teleg.  &  Teleph.  Co.,  37  Minn.  347;  s.  c,  34  N.  W. 
Rep.  337. 

3  Broome  v.  New  York,  &c.  Tel.  Co.,  42  N.  J.  Eq.  141;  s.  C,  7  Atl. 
Rep.  851 ;  5  Cent.  Rep.  814. 


40  USE    OF    STREETS    AND    HIGHWAYS. 

sidewalk.'  So,  a  company  which  undertakes,  under 
a  contract  with  a  municipal  corporation,  to  lay  a 
fire-alarm  telegraph,  has  no  right  td  invade  the 
premises  of  an  abutting  owner  and  cut  off  limbs  of 
trees,  overhanging  the  sidewalk,  not  obstructing  its 
use,  or  when  the  posts  and  wires  could  easily  be 
located  elsewhere.  Such  a  company  cannot,  it  is 
held,  justify  the  cutting  off  of  the  branches  of  such 
trees,  so  as  to  leave  an  open  space  in  the  foliage 
from  twenty-five  to  forty  feet  wide,  for  the  purpose 
of  passing  a  small  wire  through.  Nor  was  the  tres- 
pass a  trifling  one ;  for  the  court  held  that  the 
company  was  liable  for  the  value  of  the  trees,  the 
deprivation  of  the  enjoyment  to  be  derived  from 
them,  and  the  aggrieved  feelings  caused  by  their 
destruction.  Stress  was  also  laid  upon  the  fact 
that  the  trees  were  not  in  themselves  a  nuisance, 
and  had  not  been  so  declared  by  the  statute.2 

§  36.  Revocation  of  License  by  Municipal  Corpora- 
tion.— Where  a  municipal  corporation,  under  a  statu- 
tory power,  has,  by  ordinance  or  other  lawful  mode, 
authorized  a  telephone  company  to  erect  its  posts  or 
poles  in  certain  designated  streets,  and  the  company 
proceeds  so  to  erect  them,  and  to  expend  money  on 
the  faith  of  the  license  so  granted,  it  thereby  ac- 
quires a  vested  right  to  the  use  of  the  designated 
streets,  so  long  as  it  conforms  to  the  conditions  of 
the  license  ;  and  the  license  cannot  thereafter  be  re- 
voked by  the  municipality.3  So,  an  ordinance  au- 
thorizing a  telephone  company  to  maintain  lines  on 

1  Memphis  Bell  Telephone  Co.  v.  Hunt,  16  Lea  (Tenn.),  456;  s.  c, 
57  Am.  Rep.  237. 

2  Tissott  v.  Great  Southern  Telephone  &  Telegraph  Co.,  39  La.  An. 
996;   S.  C,  3  South.  Rep.  261. 

3  State  v.  Jersey  City,  49  X.  J.  L.  303;  s.  C.  S  Atl.  Rep.  123;  6  Cent. 
Rep.  538;  sub  nam.  Hudson  Tel.  Co.  v.  Jersey  City,  10  East.  Rep.  119. 


EXCLUSIVE    PRIVILEGES.  -17 

the  streets,  without  limitation  as  to  time,  for  a  stip- 
ulated consideration,  when  accepted  and  acted  on  by 
the  grantee,  by  a  compliance  with  its  conditions, 
becomes  a  contract,  which  the  city  cannot  abolish  or 
alter,  without  consent  of  the  grantee.  The  cit}^  can- 
not, therefore,  impose  a  new  and  burdensome  con- 
dition, such  as  an  annual  charge  or  tax  on  the  poles; 
nor  can  such  a  charge  be  upheld  as  a  proper  exercise 
of  the  police  power.1  Nor.  does  a  proviso  in  the  or- 
dinance containing  the  grant  that  the  acts  of  the 
company  under  the  ordinance  shall  be  subject  to 
any  ordinance  thereafter  passed,  convert  the  grant 
into  a  mere  revocable  permit;  but  it  only  subjects  the 
company  to  future  regulations,  not  inconsistent 
with  the  ordinance  itself.2 

§  37.  Struggles  by  These  Companies  for  the  Ex- 
clusive Use  of  the  Streets. — The  early  history  of  the 
railroad,  telegraph,  gas-light,  and  other  corporations 
organized  to  subserve  public  objects  for  private  gain, 
presents  struggles  for  exclusive  privileges  on  the 
part  of  those  which  had  the  good  fortune  first  to  re- 
ceive their  franchises.  Corporations  organized  to 
serve  the  public  by  conveying  the  sound  of  the  hu- 
man voice,  by  lighting  the  streets,  by  distributing 
light,  heat  and  power  to  the  inhabitants,  and  by 
propelling  passengers  along  the  streets  by  means  of 
electricity,  have  formed  no  exception  to  this  rule. 
A  statute  of  Pennsylvania3  conferring  exclusive 
privileges  on  corporations  organized  "  for  the  supply 
of  water  to  the  public,  or  for  the  manufacturing  of 
gas,  or  the  supply  of  light  or  heat  to  the  public  by 

:  New  Orleans  v.  Great  Southern  Telephone  &  Tel.  Co.,  40  La.  Ann. 
41  ;  s.  C,  3  So.  Rep.  533. 
2  Ibid. 
3Penn.  Act  of  April  29,  1874,  §  34,  cl.  3. 


48  USE    OF    STREETS    AND    II  Ki  I  i  WAYS. 

any  other  means,"  has  been  held  not  to  extend  to 
electrical  lighl  companies,  under  the  well  known 
rule  '  that  a  legislative  grant  of  exclusive  privileges 
id  a  corporation  is  to  be  construed  strictly.  "  Every 
intendment,"  say  the  court,  "  not  absolutely  in 
favor  of  the  grant,  must  be  construed  against  it. 
Monopolies  are  favorites  neither  with  courts  nor 
people.  They  operate  in  restraint  of  competition, 
and  are  hence,  as  a  rule,  detrimental  to  the  public 
welfare.  Nor  are  they  at  all  allowable,  except  where 
the  resultant  advantage  is  in  favor  of  the  public,  as, 
for  instance,  where  a  water  or  a  gas  company  could 
not  exist  except  as  a  monopoly."2 

<$)  38.  Continued  :  Plaintiff  an  Electric  Light 
Company  Organized  by  a  Gas-Light  Company. — 
Where  the  action  was  by  one  electric  light  company 
to  enjoin  another  such  company  from  furnishing 
electric  light  to  the  inhabitants  of  a  city,  and  it  ap- 
peared that  the  stock  of  the  plaintiff  company  was, 
soon  after  its  organization,  purchased  by  the  presi- 
dent of  an  existing  gas  company,  in  order  that  "  the 
two  companies  might  work  in  harmony,  and  furnish 
all  the  facilities  demanded  by  the  public  for  light, 
without  that  ruinous  competition  which  might  prove 
disastrous  to  both" — the  court  found  that  the  plaint- 
iff company  was  the  mere  tool  of  the  gas-light  com- 
pany, and  for  that  reason  refused  an  injunction. 
Gordon,  C.  J.,  said:  "Now,  the  primary  object  of 
the  institution  of  a  corporation  is  the  public  welfare, 
and  the  interest  of  the  stockholders  is  but  second- 

1  See  Emerson  v.  Com.,  108  Pa.  St.  Ill;  Com.  v.  Erie,  etc.  R.  Co., 
27  Pa.  St.  351;  Packer  v.  Sunbury,  etc.  R.  Co..  19  Pa.  St.  218. 

2  Scranton  Electric  Light  and  Heat  Co. 's  Appeal,  122  Pa.  St.  154;  s. 
C.  13  Cent.  Rep.  482;  15  Atl.Rep.  446;  22  W.  N.  C.  242;  1  L.  R.  A.  285; 
21  Chii;.  L.  News,  108. 


PRIORITY    OF    OCCUPANCY.  49 

ary  ;  hence  the  willful  frustration  of  that  intention 
by  the  act  of  a  company  is  a  fraud  on  the  public,  and 
the  corporation  perpetrating  it  is  entitled  to  no  equi- 
table consideration.  According  to  the  finding  of  the 
master,  of  this  kind  of  fraud  the  complainant  has 
been  clearly  guilty ;  it  has  become  the  mere  instru- 
ment in  the  hands  of  the  gas  and  water  company  to 
deprive,  by  false  pretense,  the  city  and  citizens  of 
Scran  ton  of  a  very  useful,  if  not  absolutely  necessary 
commodity.  How,  then,  can  it  stand  in  a  court  of 
equit}r  ?  It  is  to  no  purpose  to  say  that  its  charter  can- 
not be  attacked  in  this  collateral  proceeding.  No  one 
is  attacking  its  charter;  but  it  cannot  interpose  that 
charter  as  a  cover  for  its  own  fraud.  It  has  appealed 
to  the  equitable  side  of  the  court  to  suppress,  for  its 
own  benefit,  a  competition  that  has  arisen  from  its 
neglect  of  a  charter  duty  ;  and,  without  touching 
upon  its  legal  rights  or  legal  remedies,  this,  we 
think,  cannot  be  done.  Chancery  deals  only  with 
conscionable  demands  ;  and  with  those  that  are  un- 
conscionable, whether  through  fraud  or  neglect,  it 
will  have  nothing  to  do."1 

§  39.  Question  as  Depending-  Upon  Priority  of 
Occupancy. — A  corporation  which  is  lawfully  occu- 
pying the  streets  of  a  town  or  city  with  its  plant  will 
not,  for  obvious  reasons,  be  compelled  to  give  way 
to  a  new  comer.  This  is  well  illustrated  by  a  recent 
case  in  Nebraska,  where  the  action  was  by  a  telephone 
company  to  enjoin  an  electric  light  company  from 
erecting  its  poles  and  wires  along  the  same  street  on 
which  the  telephone  wires  were  placed.  It  appeared 
that  the  ordinance  giving  the  authority  to  the  defend- 

iScranton  Electric  Light  and  Heat  Co. 's  Appeal,  122  Pa.  St.  154;  s. 
C,  13  Cent.  Rep.  482;  15  Atl.  Rep.  44G;  22  W.  N.  C.  242;  1  L.  R.  A. 
285;  21  Chic.  L.  News,  10S. 

(4) 


50  USE    OF    STREETS    AND    HIGHWAYS. 

ant  to  erect  its  poles  and  wires  upon  the  street  had 
been  passed,  and  that  the  defendant  company  had 
constructed  its  plant,  had  erected  a  part  of  its  poles 
and  wires,  had  decided  upon  the  streets  and  public 
grounds  which  it  would  occupy,  and  notified  the 
plaintiff  company  of  its  action,  before  the  plaintiff 
had  constructed  its  lines  thereon;  that  the  officers  of 
plaintiff  had  stated  that  such  action  would  be  satis- 
factory to  them  ;  that  the  defendant  had  commenced 
the  erection  of  its  line  on  the  streets  designated, 
when  the  plaintiff  erected  its  poles  and  wires  on  the 
designated  line;  and  that  immediately  thereafter  the 
defendant  had  completed  the  erection  of  its  electric 
light  poles  and  wires.  The  Supreme  Court  held  that 
the  finding  of  the  court  that  defendant  had  first  occu- 
pied the  street,  in  pursuance  of  legal  authority,  was 
sustained  by  the  evidence,  and  that  a  decree  refusing 
an  injunction  was  proper,  no  affirmative  relief  hav- 
ing been  demanded  by  the  answer.  The  court  re- 
versed so  much  of  the  decree  of  the  court  below  as 
enjoined  the  plaintiff,  the  telephone  company,  from 
placing  its  wires  near  those  of  the  electric  light 
company.1 

§  40.  Charter  Power  of  Control  does  not  Ex- 
tend to  the  Granting-  of  Exclusive  Privileges. — The 
power  vested  in  a  municipal  corporation  by  its 
charter  to  make,  amend  or  repeal  any  ordinances 
deemed  desirable  for  lighting  its  streets,  has  been 
held  not  to  confer  upon  the  cit}7-,  by  implication, 
the  power  to  grant  the  exclusive  use  of  the  streets 
for  wires  and  poles  for  electric  lights  for  fifteen 
years.2     Where   a  city  granted  to  a  street  railway 

1  Nebraska  Tel.  Co.   v.  York  Gas  &  Electric  Light  Co.,  27  Neb.  284  ; 
s.  c,  43  N.  W.  Rep.  126. 

2  Grand  Rapids  Electric  Light,  etc.  Co.  v.  Graud  Rapids,  etc.  Co., 
33  Fed.  Rep.  659. 


POWERS    OF    MUNICIPAL    CORPORATIONS.  51 

company  the  exclusive  right  for  thirty  years  to  use 
the  streets  for  cars  to  be  "operated  with  animal 
power  only,"  it  was  held  that  this  did  not  preclude 
the  right  of  the  city  to  authorize,  within  the  term, 
the  operation  of  cars  by  another  company,  by  elec- 
tric or  motive  power  other  than  animal  power,  even 
though  the  original  grant  stipulated  that  the  city 
should  not  confer  upon  any  other  person  or  cor- 
poration any  privileges  which  would  impair  or  de- 
stroy the  privileges  granted,  and  though  at  the  time 
of  such  original  grant,  it  is  probable  that  the  only 
motive  powers  in  the  mind  of  any  one  were  animal 
power  and  steam  power.1 

§  41.  Who  may  Question  Electric  Lag-lit  Priv- 
ilege Granted  by  Municipal  Corporation. — It  has 
been  held  that  the  right  granted  by  a  city  to  erect 
towers  or  supports  for  electric  wires  and  cables,  and 
to  remove  obstructions  to  such  erections,  cannot  be 
contradicted  by  one  who  does  not  claim  an  ex- 
clusive or  concurrrent  risrht.2 

§  42.  Charter  Power  to  Authorize  the  Use  of 
Electricity  as  a  Motive  Power  for  Street  Railways. — 
The  case  of  Taggart  v.  Newport  Street  Railway,  re- 
cently decided  by  the  Supreme  Court  of  Rhode 
Island,  is  an  interesting  contribution  on  this  new 
subject.3  A  statute  incorporating  a  street  railway 
company  contained  a  section  requiring  notice  to 
abutting  property-owners,  by  publication,  before 
the  location  of  the  proposed  tracks,  and  it  also  pro- 
vided that  "the   tracks   or  road  shall  be  operated 

1  Teachout  v.  Des  Moines,  etc.  R.  Co.,  75  Iowa,  722;  s.  c,  4  Rail.  & 
Corp.  L.  J.  13;    36  Am.  &  Eng.  R.  Cas.  108. 

2  New  Orleans  Gas  Light  Co.  v.  Hart,  40  La.  An.  474;  s.  c,  4  South. 
Rep.  215.     See  ante,  §  27. 

:i  Reported  2  Adv.  272;  8.  C,  19  Atl.  Rep.  326.  See  also  Williams  v. 
City  Electric  Street  R.  Co.,  41  Fed.  Rep.  556. 


52  USE    OK    STREETS    AND    HIGHWAYS. 

and  used  by  said  corporation,  with  steam,  horse,  or 
other  power,  as  the  city  council  may  from  time  to 
time  direct."  It  was  held  that,  after  an  ordinance 
had  been  passed  permitting  the  use  of  horse  power, 
it  was  competent  for  the  city  council  to  pass  a  sec- 
ond ordinance  changing  the  power  to  electricity, 
without  further  notice  being  given  to  the  property 
owners.  Next,  as  to  the  interpretation  of  this 
ordinance,  it  was  held  that  the  power  conferred  on 
the  city  council  to  authorize  the  use  of  electricity 
as  a  motive  power,  carried  with  it  the  power  to  erect 
poles  on  the  sidewalk,  notwithstanding  the  act  to 
incorporate  the  street  railway  company  provided 
that  "  said  corporation  shall  not  encumber  any  por- 
tion of  the  street  occupied  by  said  tracks."  The 
poles  were  not  regarded  as  an  encumbrance  within 
the  meaning  of  this  prohibition,  but  as  being  neces- 
sary for  the  successful  operation  of  the  road.  It 
was  incidentally  decided  that  the  change  of  power, 
by  which  a  street  railway  is  operated,  from  horse  to 
electricity,  and  the  consequent  erection  of  poles 
necessary  for  its  operation  by  electricity,  does  not 
impose  an  additional  burden  or  servitude  upon  the 
fee  of  the  abutting  property  owners  in  the  highway, 
for  which  they  are  entitled  to  additional  com- 
pensation.5 

§  43.      Injunction    by   Telephone  Company    against 
•  Electric  Railway  Company. — In  New  York  a  tempo- 
rary injunction  has  been  ordered   at  the  suit  of  a 

5  See  ante,  §  IS.  The  New  York  statute  (X.  Y.  Laws  1SG2,  ch.  233), 
authorizing  a  turnpike  company  to  operate  a  street  railroad,  and  to  use 
"  the  power  of  horses,  animals,  or  auy  mechanical  or  other  power, 
or  any  comhination  of  them,  which  such  company  might  choose  to  em- 
ploy, except  the  force  of  steam,"  has  been  held  to  embrace  electricity 
as  a  mode  of  power.  Hudson  River  Telephone  Co.  v.  Watervliet 
Tump.,  etc.  Co.,  29  N.  Y.  State  Rep.  694. 


TELEPHONE    ENJOINING    ELECTRIC    RAILWAY  53 

telephone  company,  duly  organized  and  having  the 
right  to  occupy  the  streets  of  a  city  with  its  wires, 
upon  a  complaint  alleging  that  the  defendant  is 
about  to  erect  poles  and  string  wires  for  the  purpose 
of  propelling  its  cars  by  electricity,  on  lines  in  close 
proximity  to  and  parallel  with  the  plaintiff's  wire, 
and  upon  its  being  shown  that  powerful  currents  of 
induction  and  conduction  will  thereby  be  produced 
which  will  interfere  with  and  prevent  the  carrying 
on  of  plaintiff's  business  and  produce  irreparable 
injury.1  The  court  did  not  regard  it  as  a  good  de- 
fense to  such  a  proceeding  that  the  railway  company 
had  acquired  the  lawful  right  to  build  and  operate 
its  road  upon  the  streets  ;  but  it  took  the  just  view 
that  such  a  grant  cannot  be  made  to  the  destruction 
of  rights  already  vested,  but  that  it  is  a  reasonable 
condition  implied  in  every  such  grant  that  the 
grantee  will  indemnify  the  others  rightfully  upon 
the  streets  against  the  expense  to  which  its  entry 
subjects  them  ;  and  the  court  ruled  that  the  ex- 
pense which  a  telephone  company  incurs  by  having 
to  change  its  plant  in  consequence  of  the  interfer- 
ence of  the  railway  company  will  be  determined  on 
the  hearing  of  an  application  for  injunction.2  The 
court  reasoned  that  each  of  such  grantees  should 
do  what  is  reasonably  necessary  to  avoid  interfer- 
ence with  the  others  and  to  protect  itself;  and  it 
held  that  neither  company  has  an  exclusive  privi- 
lege to  use  what  is  called  the  grounded  or  earth 
circuit.3 

1  Hudson  River  Telephone  Co.  v.  Watervliet  Tump.,  etc.  Co.,  29  N. 
Y.  State  Rep.  22. 

-  Ibid. 

8  Ibid.  The  Court  of  Appeals  of  New  York  refused  an  injunction 
pendente  lite  in  the  same  case,  on  the  ground  that  the  right  of  the 
plaintiff  telephone  company  to  a  final  injunction,  for  which  suit  is  pend- 


•VI  USE    OF    STREETS    AXD    HIGHWAYS. 

§  44.  Continued :  Where  Both  Companies  Use 
the  Earth  for  a  Return  Circuit. — These  interfer- 
ences are  very  apt  to  take  place  where  hoth  the  tel- 
ephone and  electric  railway  company  use  the  earth 
for  their  return  current.  In  such  cases  it  has  been 
found  that  the  more  powerful  street  railway  current 
will  mingle  with  the  telephone  current  and  so 
charge  the  telephone  wires  as  to  render  them  use- 
less. In  such  a  case  either  can  obviate  the  diffi- 
culty by  changing  to  a  different  system,  by  which 
it  uses  a  second  wire  for  the  return  current;  but  this 
requires  an  increase  of  expense.  In  such  a  case  the 
question  has  presented  itself  to  the  courts,  which 
company  shall  go  to  this  increased  expense?  In  a 
case  where  the  telephone  company  had  occupied 
the  streets  of  a  city  for  ten  years,  using  the  earth 
for  its  return  current,  it  was  held  that  it  was  en- 
titled to  an  injunction  against  a  street  railway  corn- 
pan}'  which  entered  upon  the  use  of  the  street  by 
what  is  known  as  the  "  trolley  system,"  in  which  a 
single  "trolley,"  or  overhead  wire  is  used,  with  the 
earth  for  the  return  current.1  In  a  similar  case  in  the 
United  States  Circuit  Court,  it  was  held  by  Mr.  Dis- 
trict Judge  Brown  that  a  telephone  company  cannot 
maintain  a  bill  to  enjoin  the  operation  of  a  subse- 
quently-constructed electric  railway,  to  prevent  the 
disturbance  of  plaintiff's  business  occasioned  by  the 
escape  of  electricity  from   defendant's  rails,  which 

in g  in  the  court  of  original  jurisdiction,  was  doubtful,  and  ttiat  all  of 
the  important  questions  involving  the  substantial  rights  of  the  parties 
would  be  ultimately  determined  in  that  suit.  Hudsoa  River  Teleph. 
Co.  v.  Watervliet  Turnp.,  etc.  Co.,  31  X.  Y.  St.  Rep. 524;  s.  c,  24  N. 
E.  Rep.  832. 

1  City  &  Suburban  Tel.  Ass'n  v.  Cincinnati,  etc.  R.  Co.,  23  Weekly 
Law  Bui.  165.  Hunt,  P.  J.,  afterwards  tiled  an  able  dissenting  opinion : 
24  Weekly  Law  Bui.  489. 


TELEPHONE    ENJOINING    ELECTRIC    RAILWAY.  55 

is  an  incidental  result  of  the  operation  of  the  road, 
where  the  evidence  shows  that  the  plaintiff  may  obvi- 
ate the  disturbance  by  the  use  of  a  single  return  wire 
on  each  route  disturbed  by  the  railway  service,  to 
which  each  telephone  is  connected,  and  which  op- 
erates to  complete  the  metallic  circuit,  and  that 
such  device  is  simpler  and  less  expensive  than  any 
the  railway  could  adopt  to  effect  the  same  end  ; 
while  the  defendant  could  not  avoid  it  except  b}^  an 
expenditure  which  would  double  the  cost  of  its 
plant — and  this,  although  the  plaintiff  was  prior  to 
the  defendant  in  the  occupancy  of  the  streets  with 
its  wires.  The  learned  judge,  finding  from  the 
evidence  that  the  interference  could  probably  be 
avoided  by  the  use  by  the  telephone  company  of  a 
device  known  as  the  "  McClure  system,"  at  the  cost 
of  not  more  than  $10  to  each  telephone,  and  that  it 
could  not  be  avoided  by  the  railway  company  ex- 
cept by  the  use  of  a  return  wire  or  trolley  which 
would  nearly  double  the  cost  of  its  plant — held  that 
the  telephone  company  was  not  entitled  to  an  in- 
junction by  reason  of  its  prior  occupancy  of  the 
street.     In  concluding  his  opinion  he  said  : 

"If,  in  the  case  under  consideration,  it  were 
shown  that  the  double  trolley  would  obviate  the  in- 
jury to  complainant  without  exposing  defendants  or 
the  public  to  any  great  inconvenience  or  a  large  ex- 
pense, we  think  that  it  would  be  their  duty  to  make 
use  of  it,  and  should  have  no  doubt  of  our  power  to 
aid  the  complainant  by  an  injunction;  but,  as  the 
proofs  show  that  a  more  effectual  and  less  objec- 
tionable and  expensive  remedy  is  open  to  the  com- 
plainant, we  think  that  the  obligation  is  upon  the 
telephone  company  to  adopt  it,  and  that  defendants 


56  USE    OF    STREETS    AND    HIGHWAYS. 

are  not  bound  to  indemnify  it;  in  other  words,  that 
the  damage  incidentally  done  to  the  complainant  is 
not  such  as  is  justly  chargeable  to  the  defendants. 
Unless  we  are  to  hold  that  the  telephone  company 
has  a  monopol}'  of  the  use  of  the  earth,  and  of  all 
the  earth  within  the  city  of  Nashville,  for  its  feeble 
current,  not  only  as  against  the  defendants,  but  as 
against  all  forms  of  electrical  energy  which,  in  the 
progress  of  science  and  invention,  may  hereafter  re- 
quire its  use,  we  do  not  see  how  this  bill  can  be 
maintained.  We  place  our  denial  of  an  injunction 
upon  the  grounds: 

"1.  That  the  defendants  are  making  lawful  use 
of  the  franchise  conferred  upon  them  by  the  State, 
in  the  manner  contemplated  by  the  statute,  and 
that  such  act  cannot  be  considered  a  nuisance 
in  itself. 

"2.  That,  in  the  exercise  of  such  franchise,  no 
negligence  has  been  shown,  and  no  wanton  or  un- 
necessary disregard  of  the  rights  of  the  complainant. 

",3.  That  the  damages  occasioned  to  the  com- 
plainant are  not  the  direct  consequence  of  the  con- 
struction of  the  defendants'  roads,  but  are  inci- 
dental damages  resulting  from  their  operation,  and 
are  not  recoverable. 

"4.  The  cases  involving  this  principle  are  al- 
most innumerable  ;  and  in  our  examination  of  them 
we  are  satisfied  the  great  weight  of  authority  bears 
in  the  direction  we  have  indicated.  As  a  result, 
the  motion  for  an  injunction  must  be  denied." 

§  45.  Further  Observations  on  this  Subject. — it 
should  be  observed,  in  connection   with  so  much  of 

2  Cumberland  Telephone  &  Telegraph  Co.  v.  United  Electric  R.  Co., 
42  Fed.  Rep.  273. 


TELEPHONE    ENJOINING    ELECTRIC    RAILWAY.         0/ 

this  decision  as  denies  the  right  of  the  prior  occu- 
pant to  exclude  all  subsequent  comers  whose  work 
may  in  any  way  interfere  with  his  works,  that  the 
converse  rule  of  "  coming  to  a  nuisance,"  which  de- 
nies the  right  of  a  subsequent  comer  to  complain 
of  a  nuisance  previously  existing,  seems  to  be  now 
completely  exploded  in  England.1  In  both  of  these 
cases  the  one  having  the  prior  right  must  yield  his 
right  and  submit  to  damage  and  inconvenience  to 
some  extent  for  the  good  of  his  neighbor  and  of 
society.  This  principle  is  operative  in  many  situa- 
tions. It  is  constantly  applied  in  actions  at  law  for 
damages,  so  as  to  prevent  the  plaintiff  from  recover- 
ing damages  for  an  injury  which  might  have  been 
prevented  by  reasonable  care  on  his  part  after  re- 
ceiving the  hurt  from  the  defendant.  In  such  a 
case  the  plaintiff  is  under  both  a  moral  and  a  legal 
duty  to  use  reasonable  pains,  care  and  skill  to  ar- 
rest or  diminish  the  damages  which  may  have  been 
inflicted  upon  him  by  the  wrong  of  the  defendant, 
and  he  can  only  charge  the  defendant  for  such 
damages  as  have  accrued,  or  as  would  have  accrued, 
to  him  notwithstanding  the  exercise  of  such  pains, 
care  and  skill.2  On  like  grounds,  and  in  accordance 
with  the  views  of  Judge  Brown  above  quoted,  a 
court  of  equity,  which  has  been  aptly  called  "a 
court  of  conscience,"  will  not  go  to  the  extreme  of 
enjoining  one  party  in  the  exercise  of  his  lawful 
business,  because  of  an  injury  to  another  party 
which  the  latter  may  ward  off  at  very  slight  ex- 
pense.3    Such  a  case  does  not  present  that  "  strong 

1  Sturges  v.  Bridgman,  11  Ch.  Div.  853. 

2  Jenks  v.  Wilbraham,  11   Gray  (Mass.) ,  143;  Bard  well   v.  .Jamaica, 
15  Vt.  438. 

3  Bosser  v.  Randolph,  7  Port.  (Ala.)  238;  s.  c,  31  Am.  Dec.  712. 


58  USE    OF    STREETS    AND    HIGHWAYS. 

and  mischievous  case  of  present  necessity,"  which 
eminent  chancellors  have  held  necessary  to  invoke 
this  extraordinary  aid  of  a  court  of  equity.1 

§   46.      Tax  for  the  Privilege-  of  Using- City  Streets. 

— Congress,  as  already  seen,2  has  authorized  any 
company  accepting  the  provisions  of  the  act  to  oc- 
cupy with  its  poles  and  wires  any  post-road.  By 
the  Constitution  of  the  United  States,  Congress  has 
power  to  establish  post-offices  and  post-roads.3 
Under  this  provision,  Congress  has  established  as 
post-roads  (among  others)  any  road  on  which  the 
mail  is  carried  for  the  time  being  under  a  contract 
made  by  the  Postmaster-General,  and  all  letter- 
carrier  routes  established  in  any  city  or  town  for 
the  collection  and  delivery  of  mail  matter.4  This 
has  the  practical  effect  of  making  every  street  in 
every  city  or  town,  which  has  a  system  of  mail- 
delivery  by  letter-carriers,  a  post-road.  Telegraph 
companies  accepting  the  provisions  of  the  first 
named  act  of  Congress,  having  thus  acquired  the 
right  to  use  any  street  in  such  a  city  or  town  for 
the  purpose  of  setting  its  poles  and  stringing  its 
wires,  it  is  plain  that  the  city  or  town,  acting  under 
the  State  authority,  cannot  impose  a  tax  upon  such 
telegraph  companies  for  the  privilege  of  so  doing  ; 
for  no  State  authority  can  lay  a  tax  upon  a  priv- 
ilege granted  by  Congress,  especially  where  the  thing- 
privileged  is  made  by  the  act  of  Congress  an  agency 
of  the  general  Government/'     But  this  exemption 

1  Attorney-General   v.  Nichol,  16  Vesey,  33S;    Van  Bergen  v.  Van 
Bergen,  3  Johns.  Ch.  (X.  Y.)  387. 

2  Ante,  §  2. 

s  Const.  U.  S.  Art.  I,  §  8. 
*  Kev.  St.  U.  S.  §  3964. 

s  St.  Louis  v.  Western  Union  Tel.  Co..  39  Fed.  Rep.  59;  Philadelphia 
v.  Western  Union  Tel.  Co.,  40  Fed.  Rep.  615. 


REASONABLENESS    OF    LICENSE    FEE.  59 

extends  only  to  so  much  of  the  lines  of  such  a  tele- 
graph company  as  extend,  in  the  language  of  the 
act  of  Congress,1  "through  and  over  any  portion  of 
the  public  domain  of  the  United  States,  over  and 
along  any  of  the  military  or  post-roads  of  the  United 
States,  which  have  been  or  may  hereafter  be  de- 
clared such  by  law,  and  over,  under  and  across  the 
navigable  streams  or  waters  of  the  United  States." 
Where  the  amount  of  a  tax  or  excise  imposed  by  a 
State  on  a  telegraph  company  was  determined  by 
ascertaining  what  proportion  the  number  of  miles 
of  its  lines  in  the  State  bore  to  the  whole  number 
operated  by  the  company,  and  taxing  an  equal  por- 
tion of  the  assessable  value  of  the  company's  stock, 
— it  was  held  that  the  principle  itself  not  being  un- 
just, and  it  not  appearing  that  the  company  was 
injured  by  any  principle  or  rule  of  law  not  equally 
applicable  to  other  similar  objects  of  taxation,  the 
tax  would  not  be  declared  void  on  the  ground  that 
no  deduction  was  made  for  the  value  of  property  of 
the  company  subject  to  local  taxation  in  other 
States,  the  company  owning  no  such  property  within 
the  State  imposing  the  tax.3 

§  47.  Reasonableness  of  License  Fee  for  Use  of 
Streets. — A  recent  decision  of  the  Supreme  Court 
of  Pennsylvania  upholding  the  validity  of  an  ordi- 
nance of  the  city  of  Philadelphia  levying  a  license 
tax  upon  telegraph  companies  for  the  privilege  of 
setting  their  poles  in  the  streets,  is,  under  the  Fed- 
eral decisions  just  quoted,  unsound  in  its  applica- 
tion to  that  company,  which,  under  acts  of  Congress, 

1  Rev.  St.  U.  S.  §  5263. 

2  Western  Union  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530;   afUriniug 
Attorney-General  v.  Western  Union  Tel.  Co.,  33  Fed.  Rep.  129. 

3  Ibid. 


60  USE    OF   STREETS    AND    II I  (ill  WAYS. 

has  the  right  to  occupy  a  street  which  is  a  post-road, 
yet,  as  there  may  be  other  telegraph,  and  especially 
telephone  companies  not  protected  from  State  tax- 
ation of  this  kind  by  acts  of  Congress,  the  decision 
may  be  quoted  as  showing  that  the  judicial  courts 
will  not  regard  a  license  tax  of  five  dollars  per  pole 
as  unreasonable,  and  an  ordinance  imposing  it 
therefore  void.1 

§  48.  Municipal  Control  as  to  the  Mode  of  Sus- 
pending- or  Laying*  Telegraph  Wires. — Recollecting 
that  the  rights  granted  to  telegraph  companies  by 
the  act  of  Congress  already  quoted  is  subject  to  the 
reasonable  exercise  by  the  States  of  their  police 
power,"  either  exerted  by  the  State  directly  in  the 
form  of  a  statute,  or  by  a  municipal  corporation 
chartered  by  the  State,  enacted  in  pursuance  of  the 
authority  conferred  by  its  charter,  we  are  prepared 
to  accept  the  view  of  the  Supreme  Court  of  Penn- 
sylvania, that  a  city  has  the  right,  if  so  empowered 
by  its  charter,  to  supervise  and  control,  by  such 
ordinances  as  may  seem  proper,  the  erection  of 
poles  upon  and  the  stretching  of  wires  along  its 
streets;3  provided,  of  course,  that  such  regulations 
do  not  destroy  or  substantially  abridge  the  rights 
secured  by  the  Federal  statute.  Acting  on  this 
view,  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York  has  held  that  State 
legislation  compelling  electric  wires  in  the  streets 
of  a   city  to    be    placid    under   the   surface  of  the 


5  Western  Union  Tel.  Co.  V.Philadelphia  (Pa.),  12  Atl.  Rep.  144. 
For  instances  of  municipal  by-laws  void  because  unreasonable,  see  1 
Thomp.  Corp.  §  1024. 

2  Ante,  §§1,4. 

3  Western  Union  Tel.  Co.  V.Philadelphia  (Pa.),  12  Atl.  Rep.  144; 
affirming,  s.  c,  11  Phila.  327. 


FUTILITY    OF    STATUTORY    REGULATION.  61 

streets,  although  such  streets,  being  letter-carrier 
routes,  are  all  post-roads,  is  a  valid  exercise  of  police 
power,  and  is  not  an  unlawful  attempt  to  regulate 
commerce,  or  an  invasion  of  the  rights  of  a  tele- 
graph company  as  a  business  agency  of  the  general 
government,  under  the  Act  of  Congress  already  set 
out.1  The  court  also  held  that  a  State  statute 
confirming  a  contract  between  commissioners  for 
placing  electric  wires  under  ground  and  a  subway 
company,  to  lay  subways  for  such  wires,  is  none  the 
less  an  exercise  of  police  power  because  it  gives  to 
such  company  special  privileges,  but  no  exclusive 
privilege  or  franchise.2  It  was  further  ruled  in 
the  same  case  that  where  the  public  authorities  are 
not  acting  mala  fide,  the  exercise  of  their  discretion 
will  not  be  reviewed  in  a  court  of  equity  on  the  alle- 
gation of  a  telegraph  company  that  the}r  are  at- 
tempting to  place  its  wires  in  insufficient  and 
defective  subways.3 

§  49.  Futility  of  Attempts  at  Statutory  Regula- 
tion.— A  very  slight  acquaintance  with  this  subject 
must  convince  any  person  of  the  futility  of  attempts 
at  minute  statutory  regulation.  In  the  present 
state  of  our  knowledge  on  the  subject  of  electricity, 
any  regulation  must  be  more  or  less  experimental. 
The  whole  thing  should  be  remitted  to  the  control 
of  the  municipal  corporations,  under  rules  to  be  es- 
tablished by  boards  of  competent  experts  and  en- 
acted into  municipal  ordinances.  To  this  end 
municipal  corporations  should  be  fully  empowered 
to  deal  with  the   matter,  subject,  of  course,  to  any 

1  Western  Union  Tel.  Co.  v.  New  York,  3  L.  R.  A.  449;  s.  c,  2  Inter- 
state Com.  Rep.  533;  6  Rail.  &  Corp.  L.  J.  105;  38  Fed.  Rep.  552. 

2  Ibid. 

3  Ibid. 


62  USE    OF    STREETS    AND    HIGHWAYS. 

such  general  regulations  or  restraints  as  experience 
may  have  shown  to  be  necessary,  and  also  subject 
to  the  superintendence  of  the  judicial  courts 
by  the  usual  methods  of  injunction,  mandamus, 
quo  warranto  and  certiorari.  This  jurisdiction  will 
be  exercised  by  the  courts  very  sparingly,  and  only 
in  plain  cases  of  acting  without  power,  or  in  excess 
of  power,  or  in  such  a  manner  as  to  infringe  the 
undoubted  rights  secured  by  the  constitutions,  State 
or  Federal,  or  by  paramount  law.  In  Great  Britain 
an  attempt  has  been  made  to  deal  with  the  subject 
in  two  statutes  known  as  the  Electric  Lighting  Acts 
1882 '  and  1888. 2  The  latter  act  is  an  amendment 
of  the  former,  and  they  are  to  be  read  together  as 
one  act.  These  statutes  apply  both  to  Great  Britain 
and  Ireland.  Although  the  Parliament  of  that 
country  sits  almost  continuously,  and  although  its 
methods  of  legislation  are  far  superior  to  those  of 
American  legislatures,  it  was  found  impracticable 
to  deal  with  the  subject  except  in  a  general  way, 
and  it  was  found  necessary  to  commit  nearly  all 
matters  of  detail  to  the  regulation  of  the  Board  of 
Trade.  In  discharging  the  duty  thus  committed  to 
it,  that  body  has  established  an  elaborate  and 
minute  system  of  rules  and  regulations,  which  have 
become  the  foundation  of  a  very  practical  and  use- 
ful treatise  on  the  subject.3 

1  St.  45  &  46  Vict.  ch.  56. 

2  St.  51  &  52  Vict.  ch.  12. 

3  The  learned  authors  of  the  work  above  referred  to,  say  this  in  their 
preface:  "By  the  two  Electric  Lighting  Acts,  everything  (as  we  have 
said)  is  practically  left  to  the  Board  of  Trade.  In  1882  Parliament  had 
not  sufficient  information  to  legislate  with  scientific  precision  on  the 
professed  subjects  of  the  statute  of  that  year :  and  in  1888  they  had  not 
time  to  do  so,  or  thought  it  inexpedient.  Consequently  it  is  the  Board 
of  Trade,  and  not  Parliament,  who  have  built  up  the  really  effective 
and  practical    (though    nominally   auxiliary)   body    of    legislation   to 


STATUTORY    REGULATION.  6B 

§  50.  Dangers  to  be  Provided  against  by  Such 
Regulations. — While  the  opinions  of  a  non-expert 
are  of  little  value,  yet  one  who  has  considered  at- 
tentively the  disclosures  of  the  adjudged  cases  on 
questions  of  electrical  interference,  may  venture  to 
suggest  to  municipal  bodies  called  upon  to  frame 
such  rules,  that  the  principal  dangers  to  be  guarded 
against  are  the  following  : 

1 .  The  danger  of  what  is  known  as  ' '  conduction'' y 
or  leakage  which  takes  place  where  the  ground  is 
used  for  the  return  circuit  of  different  currents.  In 
such  cases  one  of  the  currents  will  cross  to  the  other 
and  interfere  with  it.  Thus,  if  an  electric  railway 
uses  the  ground  for  its  return  current,  and  a 
neighboring  telephone  line  also  uses  the  ground 
for  its  return  current,  there  is  danger  that  the  more 
powerful  current  of  the  railway  company  will  cross 
to  that  of  the  telephone  company  and  submerge  it, 
so  to  speak.     In  such  a  case,  if  the  railway  current 

which  undertakers  must  look  for  guidance,  and  the  latest  version  of 
which  appears  in  the  Model  Order.  And  it  is  the  various  rules,  regu- 
lations and  reports  framed  and  issued  by  that  department  under  powers 
conferred  by  the  Acts,  rather  than  to  the  provisions  of  the  Acts  them- 
selves (which  are  for  the  most  part  either  colorless  or  unnecessary), 
that  we  must  consult  in  order  to  ascertain  the  present  procedure  and 
practice  relating  to  applications  for  and  to  the  execution  and  working 
of  powers  under  the  various  kinds  of  statutory  concessions  authorized 
in  outline  merely  by  the  Acts.  For  it  is  to  this  department  that  Parlia- 
ment has  almost  entirely  delegated  the  duty  of  working  out  its  own 
vaguely  expressed  and  unparticularized  intentions.  Consequently, 
though  the  Act  of  1888  has  not  directly  imported  any  lengthy  or  com- 
plicated materials,  it  has  indirectly  given  rise  to  them;  for,  by  making 
practicable  the  Act  of  1882  (which  prior  thereto  had  almost  become  a 
dead  letter),  and  by  reviving  applications  thereunder,  it  has  neces- 
sitated the  large  body  of  ancillary  legislation  to  which  we  have  alluded; 
and  it  is  the  discussion  and  elucidation  of  this  ancillary  legislation 
which  the  present  edition  is  largely  concerned  with,  and  which  is  re- 
sponsible for  the  almost  entire  alteration  of  the  original  contents, 
and  for  the  increase  in  the  original  bulk  of  the  work."  Bower  &  Webb 
Electric  Lighting, Preface,  pp.  9,  10. 


64  USE    OF    STREETS    AND    HIGHWAYS. 

were  entirely  uniform,  no  injurious  effect  would,  it 
seems,  be  produced  by  the  interference.  But  as 
the  railway  current  is  seldom  or  never  uniform,  the 
effect  is  to  produce  in  the  telephone  instruments 
loud  buzzing  noises,  which  sometimes  wholly  inter- 
fere with  telephonic  communication  ;  also  to  ring 
the  bells  of  the  annunciators  in  the  offices  of  cus- 
tomers when  there  is  no  call  from  the  central  office  ; 
and,  moreover,  to  cause  a  great  number  of  the  an- 
nunciators at  the  central  office  to  fall  at  once,  so 
that  the  persons  on  duty  cannot  tell  who,  if  any 
one,  is  calling.  This  species  of  interference  can 
only  be  avoided  by  compelling  one  or  the  other  of 
the  interfering  parties  either  to  use  an  overhead 
wire  for  its  return  current,  or  otherwise  to  change 
its  system  so  as  to  desist  from  using  the  ground  for 
its  return  current.1  We  have  seen  that  different 
courts  have  dealt  differently  with  this  species  of  in- 
terference, some  putting  the  expense  of  making  the 
change  on  the  company  establishing  its  works  at 
the  later  date,  on  the  theory  that  priority  in  time 
gives  priority  of  right ;  while  Mr.  United  States  Dis- 
trict Judge  (now  Mr.  Justice)  Brown,  in  an  exceed- 
ingly lucid  opinion,  has  taken  the  opposite  view.2 

2.  The  danger  of  the  disturbance  of  the  current 
on  one  by  the  current  on  another  parallel  wire, 
through  what  electricians,  for  want  of  a  better 
name,  call  ^induction.'"  This  is  no  doubt  a  phe- 
nomenon of  the  same  general  nature  as  that  spoken 
of  in  the  preceding  paragraph  under  the  name  of 
"conduction"  or  leakage.  Both  consist  in  elec- 
trical energy  passing  from  one  wire  to  another — in 

1  Ante,  §  44. 

2  Ante,  $  44. 


STATUTORY    REGULATION.  65 

the  one  case  through  the  earth,  which  is  a  ready 
conductor,  and  in  the  other  through  the  atmos- 
phere, which  is  an  imperfect  conductor.  Ex- 
perience shows  that  the  inconveniences  to  be 
apprehended  from  atmospheric  induction  are  not 
serious,  except  where  two  wires  parallel  each  other 
for  long  distances;  and  that  the  danger  of  induction 
is,  other  things  being  equal,  in  proportion  to  the  dis- 
tance through  which  the  two  wires  run  parallel  to 
each  other.  The  usually  slight  danger  to  be  ap- 
prehended from  atmospheric  induction  is  no  doubt 
due  to  the  fact  that  the  atmosphere  is,  even  when 
saturated  with  moisture,  a  very  imperfect  conductor 
of  electricity.  For  instance,  electric  light  wires, 
which  transmit  a  powerful  current,  are  frequently 
strung  for  considerable  distances  on  the  same  cross- 
bars with  telephone  wires,  which  transmit  a  feeble 
current,  without  other  inconvenience  than  pro- 
ducing in  the  telephone  receiver  a  faint  murmur  of 
the  dynamo  which  supplies  the  electrical  energy  to 
the  lighting  wire.  One  who  will  take  pains  to 
observe  in  almost  any  American  city  where  these 
wires  have  not  been  put  under  ground,  will  see 
wires  of  different  sizes  strung  on  the  same  poles  for 
considerable  distances  in  close  proximity  with  each 
other.  The  danger  of  induction  is  also  greater,  in 
proportion  to  the  strength  of  the  current,  from  a 
telegraph  wire  to  another  electric  wire ;  for,  as 
already  stated  with  reference  to  earth  induction, 
there  is  little  danger  from  this  source  except  in  the 
case  of  an  unsteady  current,  and  the  telegraphic 
current  is  constantly  being  broken  in  the  process  of 
telegraphing;  in  other  words,  it  is  what  is  not  in- 
aptly   called   "a   make-and-break    current."     It  is 

C5) 


66  USE    OF   STREETS    AND    HIGHWAYS. 

also  to  be  observed  that  this  species  of  danger  can 
be  almost  entirely  avoided  by  the  insulation  of  the 
parallel  wires.  It  is  for  this  reason  that  many  wires 
are  not  infrequently  made  into  one  cable  where 
they  are  separated  by  insulating  material.  It  is 
for  the  same  reason  that  many  cables  which  con- 
tain several  wires  may  be  conducted  through  an 
under-ground  tube  or  subway,  without  danger  of 
this  species  of  interference. 

3.  The  danger  of  wires  coming  in  actual  contact 
with  each  other  by  reason  of  breaking.  Where  this 
takes  place  the  consequent  rubbing  will  quickly  wear 
off  the  insulating  covering,  with  which  these  wires 
are  generally  protected,  and  the  current  from  the 
one  is  consequently  transmitted  to  the  other,  which 
becomes  as  to  it  what  electricians  denominate  a  "sec- 
ond ground."  This  source  of  danger,  where  these 
wires  are  suspended  through  the  air  in  populous 
cities,  threatens  the  most  serious  consequences  to 
life  and  property.  If,  for  instance,  the  powerful 
current  of  an  electric  light  wire  is  in  this  way  taken 
up  by  a  telegraph  wire,  it  is  liable  to  burn  the  tel- 
egraphing instrument  connecting  with  such  wire, 
to  kill  the  operator  at  work  at  such  instrument, 
and  even  to  set  fire  to  the  building  of  the  telegraph 
company.  The  Western  Union  Telegraph  Company 
has  had  several  instruments  burned  out  in  this  way 
in  St.  Louis;  and  finally  its  building  took  fire  and 
burned,  not  long  since,  from  fire  communicated 
from  its  electrical  wires — though,  it  is  understood, 
not  in  consequence  of  wires  receiving  more  power- 
ful currents  from  interference  with  other  wires. 
Some  effort  has  been  made  to  minimize  this  source 
of  danger  by    the  adoption    of  a    device    called  a 


STATUTORY    REGULATION.  67 

"fusible  plug,"  which  consists,  roughly  speaking, 
in  inserting  in  the  telegraph  or  telephone  wire,  near 
where  it  enters  the  building  sough c  to  be  protected, 
a  joint  or  plug  of  lead,  pewter,  or  some  other  metal  or 
amalgam  which  fuses  at  a  low  temperature.  It  is 
claimed  in  behalf  of  this  device,  that  when  the  wire 
which  contains  it  is  seized  by  the  more  powerful 
current  of  the  interfering  wire,  it  instantly  melts, 
causing  the  wire  to  separate.  But,  admitting  all  that 
has  been  claimed  for  this  device,  three  observations 
seem  to  diminish  the  prospect  of  its  being  found 
adequate  to  the  end  intended  :  (1.)  The  insertion 
in  a  wire,  exposed  to  the  tension  of  its  own  weight 
and  to  the  strain  produced  by  the  wind,  of  a  joint 
or  plug  of  soft  metal  is  likely  to  weaken  it  and  ren- 
der it  liable  to  break  at  that  joint.  (2.)  If  it  is  so 
contrived  as  to  melt  and  break  under  a  current  not 
greatly  in  excess  of  that  which  the  wire  ordinarily 
carries,  then  there  is  danger  of  its  melting  and 
breaking  under  the  ordinary  current  of  the  wire  : 
which  seems  to  show  that  there  is  an  intermediate 
excess  of  current  between  the  ordinary  current  of 
the  wire  and  the  current  at  which  the  plug  will 
fuse,  against  which  it  affords  no  protection.  Has 
experience  proved  that  danger  may  not  flow  from 
this  intermediate  excess  of  current?  (3.)  In  any 
case  where  the  plug  or  joint  causes  the  wire  to 
break  through  its  intended  operation  under  the  in- 
fluences of  a  powerful  current,  the  danger  is  not 
done  away  with:  it  is  merely  shifted  from  the  tel- 
egraph or  telephone  company  and  its  servants  to 
the  public  passing  by  on  the  street.  It  may  in- 
stantly kill  a  foot  passenger  on  the  street  by  coming 
in  contact    with   him,  especially  if  the  weather  is 


68  USE    OF    STREETS    AND    HIGHWAYS. 

wet,  or  the  conditions  are  otherwise  such  that  his 
body  offers  a  "  second  ground  "  to  the  electric  cur- 
rent with  which  the  wire  is  charged.  These  dan- 
gers cannot  be  minimized ;"  experience  actually 
magnifies  them.  Near  the  court  house  in  St. 
Louis,  in  the  winter  of  1889-90,  two  horses  attached 
to  a  street-car  loaded  with  passengers,  going  at  full 
trot  along  the  street,  were  instantly  killed  by  com- 
ing in  contact  with  an  electric  light  wire  which  had 
become  broken  in  consequence  of  being  weighted 
with  a  heavy  sleet  which  had  fallen  during  the  pre- 
vious night. 

4.  The  danger  of  such  wires  coming  into  actual 
contact  by  "sagging."  This  danger  is  of  the  same 
nature  as  that  which  springs  from  breaking,  though 
far  more  remote,  and  consequently  less  serious.  The 
ordinary  land  wires  used  by  telegraph  companies  are 
made  of  iron.  They  do  not  expand  much  in  warm 
Aveather,  and  they  consequently  are  not  liable  to 
sag  to  such  an  extent  as  to  threaten  danger  in  ordi- 
nary cases  from  coming  in  contact  with  other  wires. 
But  they  are  much  more  liable  to  break  than  are 
copper  wires.  They  frequently  contain  flaws  into 
which  the  water  insinuates  itself,  causing  rust  and 
increasing  weakness,  until  they  finally  separate — 
often  in  storms  of  wind,  but  more  commonly  in 
storms  of  sleet  in  which  they  become  heavily 
weighted  with  ice.  If  there  are  suspended  beneath 
them  the  trolleys  of  electric  railways,  or  the  wires  of 
electric  lighting  or  electric  motor  companies,  the}7, 
are  liable  to  take  up  the  more  powerful  current  and 
transmit  it,  on  the  one  hand,  to  the  telegraph  of- 
fice, or  on  the  other  hand,  to  an  accidental  passer-by 
on  the  street.     On  the  other  hand,  the  copper  wires 


STATUTORY    REGULATION.  69 

which  are  generally  employed  by  other  electrical 
companies  are  far  more  perfect  in  their  structure, 
less  liable  to  be  affected  by  rust,  and  hence  less 
liable  to  break ;  but  they  expand  more  under  the 
influence  of  heat ;  they  gradually  stretch  under 
their  own  weight ;  and  hence  they  are  much  more 
liable  to  sag  than  are  iron  wires.  If,  therefore,  the 
copper  wire  used  by  an  electric  lighting  motor  or 
tramway  company  should,  by  sagging,  come  in  con- 
tact with  a  telegraph  or  telephone  wire  suspended 
beneath  it,  and  if  at  the  point  of  contact  the  in- 
sulating covering  of  both  wires  should  become  worn 
off  (as  would  be  likely  to  happen  if  the  contact  were 
long  continued),  or  if  the  weather  should  happen  to 
be  wet  so  that  the  coverings  of  the  interfering  wires 
should  lose  a  portion  of  their  insulating  property,  a 
current  of  electricity  might  be  transmitted  to  the 
lower  wire  sufficiently  strong  to  set  fire  to  the 
switch-boards  or  to  the  telegraphic  instruments  with 
which  it  might  be  connected.  Experience  shows 
that  the  extent  of  the  sagging  of  the  copper  wires 
usually  employed  by  electric  lighting  companies  in 
such  a  climate  as  that  of  the  central  American 
States,  between  the  limits  of  greatest  contraction  by 
cold  and  greatest  expansion  by  heat,  is  from  one  to 
two  feet  in  one  hundred  and  fifty.  This  limit  of  sag- 
ging suggests  the  limit  of  danger,  and  hence  the  limit 
of  proximity  of  electric  wires  when  suspended  below 
electric  light  wires  or  other  copper  wires  carrying  a 
powerful  current.  The  above  facts  also  suggest  the 
conclusion  that  the  danger  from  sagging  can  be  min- 
imized by  a  reasonable  inspection, which  is  demanded 
by  the  principles  of  the  common  law,  and  which 
should  be  enforced  by  suitable  municipal  regulations. 


70  USE    OF    STREETS    AND    HIGHWAYS. 

The  patrolmen  of  the  city  police  force  ought  to  be 
enjoined  with  the  duty  of  inspecting  such  wires  and 
reporting  any  breaking  or  dangerous  sagging,  and 
they  ought  to  receive  such  instruction  as  will  en- 
able them  properly  to  discharge  this  duty.  Electric 
light,  motor  and  tramway  companies  ought  also  to 
inspect  their  overhead  wires  at  least  twice  a  day. 
It  is  believed  that  this  is  generally  done  by  well 
managed  companies,  and  that,  when  an  undue  sag- 
ging is  discovered,  a  person  employed  for  the  pur- 
pose at  once  "  takes  up  the  slack." 

5.  The  danger  from  the  escaping  of  electric 
currents  in  consequence  of  the  effect  of  storms. 
Water,  whether  frozen  or  unfrozen,  is  a  good  con- 
ductor of  electricity.  The  covering  of  these  wires, 
Avhich  is  commonly  used,  loses  some  of  its  insulating- 
properties  when  wet,  whereby  some  of  the  current 
is  liable  to  escape  and  descend  to  the  earth,  down 
the  wet  surface  of  the  pole.  Persons  leaning  in  wet 
weather  against  poles  which  carry  electric  wires 
have  received  shocks  in  this  way.  This  danger  is 
greatly  increased  where  the  water  falls  in  the  form 
of  sleet  and  freezes  on  the  wires  and  poles.  A  single 
flaw  in  the  insulating  covering  of  the  wire  transmits 
the  current  to  the  icy  conductor  with  which  it  is 
covered.  The  ioe  is  frequently  continuous  from  the 
wire  down  the  pole  into  the  ground.  Thus  released 
from  its  insulation  no  one — at  least  no  one  not  an 
expert — can  tell  in  what  direction  the  subtle  fluid 
will  dart.  Where  the  wires  break  from  the  weight 
of  ice  which  they  cany,  the  danger  in  populous 
cities,   as    already    suggested,    is    increased.1     It  is 


1  During  a  recent  wind  storm  in  the  city  of  Pittsburgh,  the  appre- 
hended danger  from  this  source  became  so  great  that  the  muuicipa 


XEW  YORK  BOARD  OF  ELECTRICAL  CONTROL.     71 

believed  that  no  device  can  avert  this  species  of 
danger,  except  that  of  putting  all  electric  wires  un- 
der ground  in  populous  urban  districts.  As  already 
seen,1  regulations  of  this  kind  are  now  being  en- 
forced in  New  York,  and,  according  to  statements 
in  the  newspaper  press,  the  same  is  true  in  some 
other  cities. 

§  51.  New  York  Board  of  Electrical  Control. — 
In  1885  the  legislature  of  New  York  passed  an  act 
creating  "a  board  of  commissioners  of  electrical  sub- 
ways in  and  for  the  State  and  county  of  New 
York;"  2  and,  two  years  later,  another  act  constitut- 
ing the  same  body  a  board  of  electrical  control  in 
such  city  and  county,  and  vesting  in  it  all  the 
powers  and  duties  conferred  or  imposed  on  the 
former  board  "in  respect  to  or  affecting  the  placing, 
erecting,  construction,  suspension,  maintenance, 
use,  regulation  or  control  pf  electrical  conductors  or 
conduits  or  subways  for  electrical  conductors  in  said 
city."  3  Under  this  later  act,  the  duty  and  responsi- 
bility of  determining  all  questions  as  to  the  placing, 
erecting,  constructing,  suspension,  use,  regulation 
or  control  of  electrical  conductors  in  the  city,  be- 
longs to  this  board;  and  it  has  been  held  that,  so 
construed,  the  act  is  constitutional,  and  that  the 
action  of  the  board  should  not  be  interfered  with  by 
injunction.4  It  has  further  been  held  that  the 
authority  conferred  upon  this  board  of  electrical 
control  by  section  four  of  the  last  named  act,  to  grant 

authorities  required   all  electric  railway  companies  to   suspend   their 
operations. 

1  Ante,  §  48. 

2  New  York  Laws  of  1885,  ch.  499. 

3  N.  Y.  Act,  June  25,  1887;  Laws  1887,  ch.  716,  p.  928,  §  1. 

*  United  States  Illuminating  Co.  v.  Hess,  19  N.  Y.  St.  Rep.  883;  s.  c, 
3  N.  Y.  Supp.  777. 


72  USE    OF    STREETS    AND    HIGHWAYS. 

or  refuse  permits  for  the  continuance  of  electrical 
conductors  above  ground,  where  no  subways  have 
been  provided  therefor,  is  a  valid  exercise  of  the 
police  power,  to  the  extent  of  regulating  the  con- 
tinuance of  such  conductors  as  have  become  danger- 
ous by  reason  of  defective  insulation.1 

§  52.  Mandamus  to  Compel  City  to  Designate 
Places  for  Erecting-  Electric  Light  Poles. — From  a 
recent  decision  of  the  Supreme  Judicial  Court  of 
Massachusetts,  in  a  case  in  which  the  opinion  of  the 
court  was  prepared  by  the  late  Mr.  Justice  Devens, 
and  approved  and  delivered  by  the  court  after  his 
death,  the  principle  may  be  extracted  that,  although 
a  statute  authorizes  the  mayor  and  aldermen  of  a 
city  to  designate  where  the  poles  of  an  electric  light- 
ing company  shall  be  set,  yet  in  view  of  the  local 
character  of  such  companies,  of  the  dangers  likely 
to  arise  from  the  erection  of  their  lines,  to  travelers 
in  the  streets,  and  of  the  other  demands  by  the 
general  public  for  the  use  of  the  streets, — a  man- 
damus will  not  be  awarded  to  compel  the  perform- 
ance of  this  duty.2 

§  53.  Power  of  a  Municipal  Corporation  to  Own 
an  Electric  Light  Plant. — The  power  conferred  on 
municipal  corporations  over  their  streets  generally 
extends  to  lighting  them,  so  as  to  make  them  safe 
for  travelers  at  night;  and  in  addition  to  this  power 
the  power  to  own  property  carries  with  it,  by  im- 
plication, the  power  to  own  an  electric  light  plant 
for  the  purpose  of  generating  electricity  to  be  used 
in  lighting  its  streets.3     But  as  municipal  corpora- 

1  United  States  Illuminating  Co.  v.  Grant,  7  X.  Y.  St.  Rep.  788. 

2  Suburban  Light,  etc.  Co.  v.  Boston  (Mass.),  26  X.  E.  Rep.  447. 
3Mauldin  v.  Greenville  (S.  C),  S  L.  R.  A.  291;  s.  c,  11  S.  E.  Rep. 

434. 


POWER    OF    MUNICIPAL    CORPORATIONS.  73 

tions  are  not,  by  any  sort  of  implication,  created 
for  the  purpose  of  engaging  in  private  business  for 
profit,  if  a  city  attempts  to  own  and  operate  an 
electric  light  plant  for  the  purpose  of  lighting  private 
dwellings,  it  must  be  able  to  put  its  finger  on  some 
clause  of  its  charter  authorizing  it  so  to  do.1  If  a 
city,  for  any  municipal  purpose,  adopts  and  uses  a 
patented  device  without  a  license  from  the  owner,  it 
will  be  liable  to  him  for  infringement,  to  the  same 
extent  as  an  individual;  for  such  corporations  are 
no  more  privileged  to  take  private  property  for  their 
uses   without  paying  for   it,   than  individuals  are.2 

1  Mauldin  v.  Greenville,  supra. 

2  It  has  been  held  that  the  city  of  New  York  may  be  sued  in  the 
United  States  Circuit  Court  for  an  infringement  of  a  patent,  without  re- 
gard to  whether  a  demand  has  been  made  on  the  city  comptroller  under 
the  State  statute  requiring  the  presentation  of  claims  before  suit 
brought.  Gamewell  Fire  Alarm  Tel.  Co.  v.  New  York,  31  Fed.  Rep. 
312. 


74  USE    OF    STREETS    AND    HIGHWAYS. 


Article  II.— STATUTES. 

SECTION. 

54.  Recent  Statutes  Regulating  Electrical  Companies. 

55.  Statutes  Authorizing  the  Laying  of  Such  Wires  Under  Ground. 

56.  Statutes  Committing  the  Subject  to  the  Regulation  of  Municipal 

Corporations. 

57.  Statutes   and  Municipal  Regulations  Authorizing  the  Stringing 

of  Wires  on  Existing  Poles. 
5S.    Statutes  Restraining  Invasions  of  Private  Property. 
59.    Statutes  Authorizing  the  Use  of  Roads  and  Streets  by  Telegraph 

and  Telephone  Companies. 

§  54.  Recent  Statutes  Reg-ulating  Electrical  Com- 
panies.— The  employment,  under  recent  inventions, 
of  an  agency  so  dangerous  as  electricity,  has  ren- 
dered the  public  regulation  of  electric  lighting, 
electric  railways,  and  other  machines  which  employ 
electrical  energy,  extremely  necessary.  The  diffi- 
culty of  intelligent  and  beneficial  statutory  regula- 
tion consists  in  the  fact  that  our  knowledge  of  the 
subject  is  in  its  infancy.  Some  things  are,  however, 
known  of  electricity.  One  of  these  things  is,  that 
this  energy,  whether  it  consists  of  the  waves  or  vibra- 
tions of  a  subtle  medium,  or  of  currents  of  actually 
moving  matter — runs  only  in  a  circuit;  that  is  to 
say,  it  will  not  flow  unless  it  can  find  a  conducting 
substance  through  which  it  can  return  to  the  point 
from  whence  it  started.  A  man  may,  with  his 
moist  hand,  take  hold  of  the  end  of  the  largest  wire, 
charged  with  the  most  powerful  current,  if  he  can 


STATUTES UNDERGROUND    WIRES.  75 

make  sure  that  his  body  is  completely  insulated — 
that  is  to  say,  that  the  current  cannot  proceed  on 
its  circuit  through  his  body.  Unless  it  can  so  pro- 
ceed, it  is  inert,  like  so  much  water  in  an  impervious 
reservoir.  This  well-known  law  of  electricity  has 
induced  the  legislature  of  one  State  to  enact  the  fol- 
lowing statute:  "It  shall  be  the  duty  of  each  and 
every  electric  light,  power  company,  and  of  each  and 
every  person  engaged  in  the  transmission  of  electric 
energy  within  this  State,  to  provide,  by  suitable  in- 
sulation, return  wires,  or  other  means  against  injury 
to  persons  or  property,  by  leakage,  escape  or  induc- 
tion of  any  and  every  current  of  electricity;"  neg- 
lect of  such  duty  entitles  persons  injured  to  en- 
join further  use  of  such  current  until  the  provis- 
ions have  been  complied  with.1 

§  55.  Statutes  Authorizing-  the  Laying-  of  Such 
Wires  Under  Ground. — A  statute  of  Maryland  pro- 
vides for  the  formation  of  corporations  for  the  con- 
structing and  operating  of  telegraph  and  telephone 
lines  within  that  State.2  Another  statute  of  the 
same  State  provides  for  the  formation  of  corpora- 
tions "for  transaction  of  any  business  in  which 
electricity  over  or  through  wires  may  be  applied  to 


1  Wis.  Act,  April  15,  1S89;  Acts  1889,  ch.  375.  The  Pennsylvania  act 
for  the  incorporation  and  regulation  of  electric  light,  heat  and  power 
companies  (Act  April  29,  1874),  amended  Act  May  8,  1889;  L.  1889  No. 
153,  p.  136.  The  legislature  of  Kentucky  recently  passed  a  general  act 
regulating  the  use  of  streets  by  companies  supplying  electricity  for  any 
purpose,  and  vesting  control  in  local  authorities  to  prescribe  necessary 
regulations;  also  providing  for  damages  for  injuries  to  property.  Act 
March  22,  1887;  Pub.  Acts  18S7,  ch.  33,  p.  G76.  Section  3603  of  the 
General  Statutes  of  the  same  State,  which  punishes  the  obstructing  of 
horse  railroad  companies  in  the  use  of  their  roads  or  tracks,  has  recently 
been  amended  so  as  to  include  electric  and  cable  railroad  companies- 
Act  March  20,  1889;  Gen.  L.  1889,  ch.  44,  p.  24. 

2  Md.  Laws  1S84,  p.  481,  ameuding  the  Revised  Code  of  1878,  p.  317. 


76  USE    OF   STEEETS    AND    HIGHWAYS. 

any  useful  purpose."  !     This  latter  statute  contains 
the  following  new  sections: 

"Any  corporation  formed  under  class  eleven  of  section  twenty- 
four  of  the  act  of  which  this  act  is  amendatory,  or  under  class 
eleven  A.  of  section  twenty-four  of  the  act  of  which  this  act  is 
amendatory,  as  said  section  and  class  may  have  been  or  may  be 
hereafter  amended,  shall  have  the  powers  which  are  conferred 
upon  telegraph  companies  incorporated  under  said  act,  of  which 
this  act  is  amendatory,  by  the  one  hundred  and  twenty-ninth  sec- 
tion of  said  last  mentioned  act,  and  may  construct  and  lay  any 
part  of  its  said  line  or  lines  under  ground,  on  any  route  on  which 
it  is  authorized  to  construct  such  lines,  in  whole  or  in  part,  above 
ground,  and  may  acquire  by  condemnation  any  easements  or  in- 
terests in  land  which  may  be  necessary  to  give  effect  to  the  pur- 
poses for  which  such  corporation  was  formed,  in  the  manner  set 
forth  in  sections  one  hundred  and  seventy  to  one  hundred  and 
seventy-five,  both  sections  included,  of  the  said  act  of  which  this 
act  is  amendatory.2"  "Provided,  however,  That  all  corporations 
incorporated,  or  to  be  incorporated,  by  virtue  of  said  section 
twenty-four,  class  eleven,  or  by  virtue  of  said  section  twenty- 
four,  class  eleven  A.,  except  such  corporations  as  are  now 
in  practical  operation  and  have  laid  or  constructed  their  lines,  or 
any  part  thereof,  in  the  City  of  Baltimore,  shall,  before  using  the 
streets  or  highways  of  Baltimore  City,  either  the  surface  or  the 
ground  beneath  the  same,  obtain  a  special  grant  from  the  General 
Assembly  of  Maryland,  and  the  assent  and  approval  of  the  Mayor 
and  City  Council  of  Baltimore  city."  3 

§  56.  Statutes  Committing  the  Subject  to  the 
Regulation  of  Municipal  Corporations.  —  Statutes 
have  already  been  enacted  in  some  of  the  States  which 
commit  the  subject  to  the  regulation  of  municipal  cor- 
porations. Thus,  a  statute  of  Pennsylvania  enacts: 
"That,  before  the  exercise  of  any  of  the  powers  given 
under  this  act,  application  shall  first  be  made  to  the 
municipal  authority  of  the  city,  town  or  borough, 
in  which  it  is  proposed  to  exercise  said  powers,  for 

1  Md.  Laws  1886,  p.  265,  §  24. 

2  Ibid.  §  175  A. 

3  Ibid.  §  175  B. 


STATUTES MUNICIPAL    REGULATION.  77 

permission  to  erect  poles,  or  to  run  wires  on  the 
same  or  over,  or  under  any  of  the  streets,,  lanes  or 
alleys  of  said  city,  town  or  borough,  which  per- 
mission shall  be  given  by  ordinance  only,  and  may 
impose  such  conditions  and  regulations  as  the  munic- 
ipal authorities  may  deem  necessary."  '  By  statute 
in  Rhode  Island,  Town  Councils  and  City  Coun- 
cils may,  from  time  to  time,  make  and  ordain  all 
ordinances,  for  their  respective  towns,  not  repug- 
nant to  law,  which  they  may  deem  necessary  "to 
regulate  the  putting  up  and  maintenance  of  tele- 
phone and  other  wires  and  the  appurtenances 
thereof."2  A  statute  of  Vermont  also  enacts  as 
follows: 

"Persons  or  corporations  erecting  telegraph  or  telephone 
wires  across  a  highwaj'  in  a  town,  shall  either  place  them 
under  ground,  or  at  such  a  distance  above  the  surface  of  the 
highway  that  the}r  nia}r  not  prove  an  obstruction  to  travel  in  the 
highway.  If  such  wires,  already  erected  across  a  highway  in  a 
town,  are,  in  the  opinion  of  the  selectmen,  an  obstruction,  the 
selectmen  may  direct  the  same  to  be  placed  under  ground,  or  at 
a  greater  height.3 

"If  a  wire  is  erected  in  violation  of  the  directions  of  the 
selectmen,  or  is  not  altered,  when  directed  to  be  altered  by 
the  selectmen,  the  selectmen  may  remove  such  wire,  and  may  re- 
cover the  expense  of  such  removal,  of  the  persons,  or  corporations, 
owning  such  wire,  or  who,  by  themselves  or  their  agent,  caused 
the  same  to  be  erected  in  violation  of  the  directions  of  the  select- 
men, by  an  action  brought  in  the  name  of  the  town."  4 

A  statute  of  Connecticut  enacts: 

"The  selectmen  of  any  town,  the  common  council  of  any  city, 
and  the  warden  and  burgess  of  any  borough  shall,  subject  to  the 

1  Penn.  Laws  1S85,  p.  164,  §  4. 

2  Gen.  Stats.  R.  I.  1882,  ch.  38,  §  115. 

3  Vt.  Laws,  1884,  p.  22,  §  1. 

4  Ibid.  §  2.  Another  statute  of  the  same  State  provides  that  telegraph 
and  telephone  poles  shall  be  suitably  •pointed  to  the  satisfactiou  of  the 
town  authorities,  imposes  a  penalty  for  a  failure  so  to  do,  and  punishes 
the  posting  of  bills  on  the  same.     Vt.  Laws,  1882,  p.  75,  §§  1-3. 


78  USE    OF    STKEETS    AND    HIGHWAYS. 

provisions  of  the  preceding  section,  within  their  respective  juris- 
dictions, have  lull  direction  and  control  over  the  placing,  erec- 
tion, and  maintenance  of  any  such  wires,  conductors,  fixtures, 
structures,  or  apparatus,  including  the  re-locating  or  removal  of 
the  same,  and  including  the  power  of  designating  the  kind, 
quality,  and  finish  thereof,  and  may  make  all  orders  necessary  to 
the  exercise  of  such  power  of  direction  and  control,  which  orders 
shall  be  in  writing  and  recorded  in  the  records  of  their  respective 
communities,  but  shall  be  subject,  nevertheless,  to  the  right  of 
appeal  by  said  company  to  a  judge  of  the  Superior  Court,  who, 
after  a  hearing,  upon  due  notice  to  all  parties  in  interest,  shall, 
as  speedily  as  possible,  determine  the  matter  in  question,  and 
affirm,  modify,  or  revoke  said  order."  l 

The  Revised  Statutes  of  Missouri  enact  as  fol- 
lows: 

"The  mayor  and  aldermen,  or  board  of  common  council  of  any 
city,  and  the  trustees  of  any  incorporated  town,  through  which  the 
lines  of  any  telephone  or  telegraph  company  are  to  pass,  may, 
by  ordinance  or  otherwise,  specify  where  the  posts,  piers,  or  abut- 
ments shall  be  located,  the  kind  of  posts  that  shall  be  used,  the 
height  at  which  the  wires  shall  be  run ;  and  such  company  shall 
be  governed  by  the  regulations  thus  prescribed ;  and  after  the 
erection  of  said  telephone  or  telegraph  lines,  the  said  mayor  and 
aldermen,  or  board  of  common  council,  and  the  trustees  of  any 
incorporated  town,  shall  have  power  to  direct  any  alteration  in  the 
location  or  erection  of  said  posts,  piers,  or  abutments,  and  also 
in  the  height  at  which  the  wires  shall  run,  having  first  given  such 
company  or  its  agents  opportunity  to  be  heard  in  regard  to  such 
alteration."  - 

A  statute  of  Nebraska  enacts: 

"The  Mayor  and  Council  shall  have  power  to  regulate  and 
provide  for  the  lighting  of  streets,  laying  down  gas  pipes,  and 
erection  of  lamp  posts,  electric  towers,  or  apparatus,  and  to  regu- 
late the  sale  and  use  of  gas  and  electric  lights,  and  fix  and  deter- 
mine the  price  of  gas,  the  charge  of  electric  light,  and  the  rent  of 
gas-meters  within  the  city,  and  regulate  the  inspection  thereof,  and 
to  regulate   telephone    service   and   the  use  of  telephones  within 

1  Gen.  Stats.  Conn.  1887,  §  3946.    Two  subsequent  sections  commit  a 
superintending  jurisdiction  to  the  Superior  Court. 
-  Mo.  Rev.  Stats.  1879,  §  888;  1889,  §  2730. 


STATUTES MUNICIPAL    REGULATION.  79 

the  city,  and  to  fix  and  determine  the  charge  for  telephones  and 
telephone  service  and  connections,  and  to  prohibit  or  regulate  the 
erection  of  telegraph,  telephone,  or  electric  wire  poles  in  the  pub- 
lic grounds,  streets  or  alleys,  and  the  placing  of  wires  thereon,  and 
to  require  the  removal  from  the  public  grounds,  streets  or  alleys  of 
any  or  all  such  poles,  and  require  the  removal  and  placing  under 
ground  of  any  or  all  telegraph,  telephone  or  electric  wires."1 

A  statute  of  New  Hampshire  contains  the  follow- 
ing provisions: 

"Whenever  any  such  proprietors  shall  desire  to  erect  their 
poles  or  structures,  or  to  stretch  their  wires,  they  may  apply  by 
petition  to  the  Mayor  and  aldermen  of  any  city,  or  the  selectmen 
of  any  town  in  which  such  poles  or  structures  are  to  be  erected  or 
wires  stretched,  to  locate  the  route  of  the  lines  for  such  telegraph, 
telephone,  or  electric  lighting,  on,  over,  and  along  the  public 
highwa}*s  in  such  town  or  city,  and  to  grant  license  therefore,  upon 
such  conditions  as  the  public  good  may  require.2 

"The  Mayor  and  alderman,  or  the  selectmen,  shall  have  the 
power  to  grant  such  license,  and  may  fix  and  limit  the  size  and 
location  of  such  poles  and  structures,  their  distances  from  each 
other,  the  height  from  the  ground  that  such  wires  may  be  stretched, 
and  the  number  of  wires  that  may  be  so  used,  and  the  time  for 
which  the  license  shall  continue  in  force,  and  may  revoke  the  same 
whenever  the  public  good  shall  so  require,  and  from  time  to  time, 
upon  like  application  of  such  proprietors,  or  by  any  person  whose 
rights  or  interests  are  affected,  may  alter  and  change  the  lo- 
cation of  such  poles  or  structures,  and  the  height  and  size  of  the 
same,  as  well  as  the  height  and  number  of  wires,  or  may  revoke 
the  said  license,  if  proper  cause  is  shown ;  and  all  proceedings  of 
the  Mayor  and  aldermen,  or  selectmen,  under  this  act,  shall  be 
subject  to  the  supervision  of  the  Supreme  Court,  on  application  of. 
any  person  interested  or  aggrieved.3 

"No  such  poles  or  structures  shall  be  erected,  or  wires  stretched 
in  any  way  so  as  to  interfere  with  any  other  similar  structure.4 

"If  any  person  shall  be  aggrieved  or  damaged  by  the  erection  of 
such  poles  or  structures,  or  by  the  stretching  of  such  wires,  or  by 
the  use  made  of  the  same,  he  may  apply  to  the  Mayor   and  alder- 

1  GeD.  Laws  Neb.  1887,  p.  123,  §  50. 
-  X.  H.  Laws  1881,  p.  472,  §3. 

3  Ibid.  §  4. 
*  Ibid,  §  5. 


80  USE    OF    STREETS    AND    HIGHWAYS. 

men,  or  the  selectmen,  to  assess  the  damages  which  he  claims  are 
occasioned  thereby,  who  shall  give  notice  to  such  proprietors  and 
all  others  interested,  and  after  hearing  all  parties  may  award  such 
damages  as  may  be  legally  and  justly  due.1" 

"If  said  Mayor  and  alderman,  or  selectmen,  shall  neglect  or 
refuse  to  make  such  award,  or  either  party  shall  be  dissatisfied 
therewith,  or  said  proprietors  shall  neglect  or  refuse  to  pa}r  the 
same  within  thirty  da}rs  after  such  award  is  made,  either  party 
may  apply  to  the  Supreme  Court  for  relief,  and  like  proceedings 
shall  be  had  as  in  case  of  appeals  from  the  laying  out  of  highways 
and  the  assessment  of  damages  therefor.2 

"  Proceedings,  as  provided  by  this  act,  may  be  taken  on  peti- 
tion to  the  Mayor  and  aldermen,  or  selectmen,  in  case  any  pro- 
prietors- aforesaid  shall  desire  to  lay  their  wires  under  the  surface 
of  any  highway,  or  in  case  any  person  interested  or  affected  by 
such  poles,  structures  or  wires,  or  the  use  made  thereof,  shall  pe- 
tition therefor.3 

"  Similar  proceedings  may  be  had  by  airy  such  proprietors 
for  locating  and  licensing  airy  such  telegraph,  telephone,  or 
electric  lighting  lines,  already  constructed  or  for  changing  or  alter- 
ing the  location  of  such  lines  as  may  have  been  heretofore  erected.4 

' '  Nothing  herein  contained  shall  exempt  any  such  propri- 
etors from  liability  for  any  unlawful  entry,  trespass,  or  damage 
already  made  or  committed,  nor  from  any  liability  or  damage  that 
may  occur  from  want  of  care  or  from  negligence  in  erecting  or 
maintaining  such  poles,  structures  or  wires.5 

"Such  proprietors  of  any  telephone  or  telegraph  lines  shall 
open  and  maintain  at  some  convenient  point  or  points,  offices  or 
places  where  any  person  desiring  so  to  do  may  use  such  telephone 
or  telegraph  line  for  communication  to  all  points  reached  by  such 
line  or  its  connections,  on  payment  of  a  reasonable  fee  for  such 
use  ;  and  if  any  such  proprietors  shall  neglect  or  fail  so  to  open 
and  maintain  such  offices  or  places,  any  person  aggrieved  may  ap- 
ply to  the  Supreme  Court,  b}r  petition  for  redress,  and  the  court 
shall  make  such  orders  and  issue  such  decrees  as  justice  may  re- 


quire.6 

i  N.  H 

.  Laws 

1881, 

P- 

472, 

§ 

6. 

2  Ibid. 

§  7. 

3  Ibid. 

§  8. 

*  Ibid. 

§9. 

«  Ibid. 

§10. 

■  Ibid. 

ill. 

STATUTES MUNICIPAL    REGULATION.  81 

"Such  proprietors  of  any  electric  lighting  apparatus  or  lines 
shall  furnish  the  means  of  lighting  by  such  electric  light  to  all  per- 
sons within  the  reach  thereof  and  applying  therefor,  upon  similar 
terms  and  conditions,  without  discrimination  and  at  reasonable 
rates  ;  and  any  person  aggrieved  by  the  neglect  or  failure  to  fur- 
nish such  means,  at  such  rates,  ma}'  apply  to  the  Supreme  Court 
by  petition,  for  redress,  and  the  court  shall  make  such  orders  and 
decrees  as  justice  may  require."1 

A  statute  of  New  Jersey  is  as  follows: 
1.  "That  whenever  any  telegraph  or  telephone  company,  organ- 
ized by  virtue  of  the  act  to  which  this  is  a  further  supplement, 
or  by  virtue  of  any  special  act,  shall  apply  to  the  Common  Council, 
township  committee,  or  other  legislative  body  of  any  city,  town, 
township,  village  or  borough  ill  this  State  (the  Common  Council,, 
township  committee,  or  other  legislative  body  of  which  is  author- 
ized by  law  to  take  and  appropriate  lands  or  real  estate  for  the 
opening,  laying  out  or  constructing  streets  therein,  and  to  make 
awards  for  lands  or  real  estate  taken  therefor,  and  to  levy  assess- 
ments for  benefits  or  expenses  of  such  improvements,  by  a  board  of 
assessment  or  otherwise),  through  which  it  is  intended  to  construct 
or  extend  any  telegraph  or  telephone  line,  for  a  designation  of  the 
street,  streets  or  highways,  in  or  upon  which  the  posts  or  poles  of 
said  company  may  be  erected,  it  shall  be  the  duty  of  such  Com- 
mon Council,  township  committee  or  other  legislative  body  to  give 
to  such  company  a  writing,  designating  the  street,  streets,  or 
highways  in  which  the  posts  or  poles  of  said  company  shall  be 
placed,  and  the  manner  of  placing  the  same,  subject  in  other  re- 
spects to  the  provisions  of  the  act  to  which  this  is  a  supplement ; 
the  street,  streets  or  highways  to  be  designated  as  aforesaid  shall 
be  such  as  form  a  practicable  and  suitable  continuous  route  for  the 
line  of  said  company  through  such  municipality,  commencing  and 
em  ling  upon  a  public  highway,  and  shall  be  designated  with  due 
regard  to  the  improvement  of  facilities  for  telegraphic  or  tele- 
phonic communications ;  in  case  such  Common  Council,  town- 
ship committee,  or  other  legislative  body  shall  not,  within  fifty 
days  from  the  time  of  the  making  of  such  application,  give  to  such 
company  a  writing,  designating  the  street,  streets  or  highways  in 
which  the  posts  or  poles  of  such  company  may  be  erected,  and 
the  manner  of  placing  the  same,  as  hereinbefore  provided,  it 
shall    he  lawful   for  such  company  to  apply  to  the  Circuit  Court  of 

1  N.  If.  Laws  L8*l,  i».  \l->.  §  12. 

(6) 


82  USE    OF    STREETS    AND    HIGHWAYS. 

the  county  in  which  such  city,  town,  township,  village  or  borough 
is  situate,  or  to  the  judge  thereof  in  vacation,  and  such  court  or 
the  judge  thereof,  after  a  hearing  upon  twenty  days'  notice  to 
such  Common  Council,  township   committee  or  other   legislative 

liody.  which  notice  shall  be  published  at  least  once  a  week,  for  two 
weeks,  in  a  newspaper  in  which  the  ordinances  of  such  city,  town, 
township,  village  or  borough  are  published  according  to  law,  or  in 
Case  there  is  no  such  official  newspaper,  then  in  a  newspaper  pub- 
lished in  the  county,  to  he  designated  by  said  court  or  judge, 
shall,  as  speedily  as  possible,  hear  the  matter  iii  question,  and 
may.  in  the  discretion  of  saidcourl  or  judge,  designate  the  street, 
streets  or  highways  in  which  the  posts  or  poles  of  such  company 
may  lie  elected  and  the  manner  of  placing  the  same,  which  desig- 
nation shall  have  the  same  force  and  effect  as  if  made  by  the  legis- 
lative body  of  said  city,  township,  village  or  borough. 

2.  ••And  be  it  enacted.  That  it  shall  lie  unlawful  for  any  tele- 
graph or  telephone  company  to  construct  or  extend  any  telegraph 
or  telephone  line,  or  to  erect  airy  posts  or  poles  therefor,  in  any 
city.  town,  township,  village  or  borough,  having  the  powers  enu- 
merated in  the  first  section  of  this  act,  without  first  obtaining  such 
designation  of  their  route,  and  then  only  upon  the  street,  streets 
or  highways  so  to  be  designated."1 

The  Revised  Laws  of  Vermont  contain  these  pro- 
visions: 

"Persons  associated  together  to  erect  a  line  of  telegraph  wires  in 
this  State,  may  set .  erect  and  maintain  the  posts  and  other  necessary 
fixtures  therefor,  in  and  along  any  highway  ;  but  the  same  shall  be 
done  so  as  not  to  interfere  with  the  public  convenience  in  travel- 
ling on  such  highway,  or  repairing  the  same.2 

"If  it  is  found  inconvenient  or  inexpedient,  to  erect  such  tele- 
graph  wires  agreeably  to  the  preceding  section,  the  selectmen  in  the 
town  where  such  difficulty  arises  shall  determine,  upon  application, 
where,  and  in  what  manner,  such  wires  shall  be  erected,  giving 
notice  to  the  parties  in  interest,  or  their  agents,  and  shall  certify 
their  decision,  and  cause  the  same  to  be  recorded  in  the  town 
clerk's  office.8 

1  X.  J.  Laws,  1888,  eh.  15:57.  amending  Act  of  April  1,  1887*  (Laws 
18S7,  ch.  S7).  This  last  act  also  amended  the  general  act  "to  incorpo- 
rate and  regulate  telegraph  companies.''  N.  J.  Kev.  1S77.  p.  1174.  See 
also  N".  J.  Supp.  p.  1022. 

2  Rev.  Laws  Vt.  18S0,  §  3633. 
» Ihid.  §  3634. 


STATUTES MUNICIPAL    REGULATION.  83 

"If  it  is  found  desirable  to  erect  such  line  of  telegraph,  in  and 
along  the  streets  of  a  village,  or  in  front  of  and  near  residences  of 
airy  persons,  and  such  persons  object  thereto,  they  may  apply  to 
the  selectmen  of  such  town,  or  officers  of  such  village,  who  shall 
determine  through  what  streets  the  same  shall  pass,  or  in  what 
manner,  if  at  all,  such  objections  may  be  obviated ;  and  such  de- 
cision shall  be  final,  notice  being  given  as  required  in  the  preced- 
ing section.1 

"When  such  selectmen,  or  other  officers,  are  called  upon  to  act, 
they  shall  be  paid  one  dollar  each  a  day ;  and  the  decision  of  a 
majority  of  them  shall  be  final;  and  the  expenses  incurred  thereby 
shall  be  paid  by  the  persons  erecting  such  telegraph  line.2 

"When,  in  the  erection  of  a  telegraph  line,  the  owner  or  occupant, 
of  lands  or  tenements  sustains,  or  is  likely  to  sustain,  damage 
thereby,  the  selectmen  of  the  town  shall  appraise  such  damage, 
and  the  same  shall  be  paid  before  the  line  is  erected ;  and  the  de- 
cision of  such  selectmen  shall  be  final,  notice  being  given  as  before 
required  in  this  chapter.3 

"Towns  may  construct,  for  their  own  use,  telegraph  lines  upon 
and  along  the  highways  and  public  roads,  within  their  limits,  sub- 
ject to  the  provisions  of  this  chapter,  so  far  as  the  same  are  appli- 
cable.4 

"Selectmen  may  authorize  persons,  upon  such  terms  as  the}'  pre- 
scribe, and  subject  to  the  provisions  of  this  chapter,  as  far  as  ap- 
plicable, to  construct  for  private  use,  a  telegraph  line  along  the 
highways  of  the  town."5 

§  57.  Statutes  and  Municipal  Regulations  Au- 
-  tliorizing  the  Stringing-  of  Wires  on  Existing  Poles. 
— In  order  to  prevent  the  needless  multiplicity  of 
poles  on  the  streets  of  cities,  towns  and  villages, 
which  obstruct  public  travel  and  also  obstruct  and 
tangle  firemen  in  the  putting  out  of  fires,  statutes 
have  been  enacted  and  municipal  regulations  estab- 
lished providing  for  the  suspension  of  the  wires  of 
new  companies  on  the  poles  of  companies  already 

1  Rev.  Laws  Vt.  1S80,  §  3635. 

2  Ibid.  §  3636. 

3  Ibid.  §  3637. 

4  Ibid.  §  3642. 
•"-  Ibid.  §  3043. 


84  USE    OF    STREETS    AND    II  Kill  WAYS. 

existing.  This  is  a  condemnation  of  private  prop- 
erty for  public  use,  and  it  can  only  be  done  by  or 
under  authority  of  an  act  of  the  legislature ;  nor 
can  it,  under  American  constitutions,  take  place  at 
all  without  the  payment  of  just  compensation  to 
the  companies  whose  poles  are  thus  used.  Whether 
it  can  take  place  at  all,  to  the  exclusion  of  the  right 
of  the  company  owning  the  poles  to  fill  all  the  cross- 
bars which  the  poles  will  carry  with  its  own  wires, 
if  so  many  are  necessary  to  the  proper  conducting 
of  its  own  business,  must  also  be  regarded  as  very 
doubtful.  A  statute  of  this  kind  exists  in  Vermont 
in  the  following  language  : 

""Whenever  any  persons  or  corporations  are  about  to  erect  a  line 
of  telegraph  or  telephone  wires  in  and  along  a  highway  within  any 
town,  city,  or  incorporated  village,  in  and  along  which  a  line  of 
poles  has  already  been  erected  by  other  persons  or  corporations, 
for  a  similar  purpose,  the  selectmen  of  such  town,  or  principal  of- 
ficers of  such  city  or  village,  shall  have  the  right  to  permit,  and 
may  recpiire,  the  persons  or  corporations  about  to  erect  a  new  line, 
to  attach  their  wires  to  the  poles  already  standing,  as  provided  in 
the  following  section.1 

"Said  selectmen,  or  principal  officers,  shall  ascertain,  as  near  as 
may  be,  the  cost  of  erecting  such  line  of  poles,  and  shall  direct 
such  persons  or  corporations  as  they  may  require  to  use  said  poles, 
to  pay  to  the  owners  of  the  line  already  erected,  a  fair  proportion  of 
such  expense,  not  to  exceed  one-half  the  estimated  original  cost  of 
construction ;  and  in  no  case  shall  said  poles  be  used  until  the 
owners  of  the  new  line  shall  tender  to  the  original  owners  of  said 
line  of  poles,  the  amount  so  directed  by  said  officers.  And  if  a 
pole  or  poles,  used  by  two  or  more  persons  or  corporations,  shall 
be  required  to  be  repaired,  or  renewed,  the  expense  thereof  shall 
lie  borne  equally   by  the  persons  or  corporations  using  the  same.2 

"Said  officers  shall  give  written  notice  to  the  proprietors  of  both 
the  old  and  new  lines  of  all  their  requirements  in  the  premises,  and 


1  Rev.  Laws  Vt.  §  3645. 

2  Ibid.  §  3646. 


STATUTES USE    OF    EXISTING    POLES.  85 

shall  also  lodge  a  copy  of  said  notice  in  the  town  or  citjr  clerk's 
office,  as  the  case  may  be.1 

"The  proprietors  of  any  such  line  of  poles  so  required  to  be 
used  by  any  other  person  or  corporation,  shall  not  take  down,  or  al- 
ter, the  position  of  such  poles,  without  obtaining  permission  of  all 
parties  who  may  have  acquired  a  right  to  use  said  poles,  or  the 
permission  of  the  town,  city,  or  village  officers  aforesaid;  and  any 
person  or  corporation,  injured  by  the  violation  of  this  section,  may 
maintain  an  action  on  the  case,  founded  on  this  statute,  to  recover 
the  amount  of  such  injury.2 

"The  selectmen,  or  other  officers,  shall  receive  one  dollar  each, 
a  day,  for  their  services  under  sections  two  and  three  [ante,  §§ 
3646,  3647]  ;  and  the  decision  of  a  majority  of  them  shall  be  final. 
All  expenses  incurred,  shall  be  paid  by  the  persons,  or  corpora- 
tions, erecting  such  new  line."3 

Another  statute  of  the  same  State  enacts  : 

"Persons  desiring  to  attach  a  telephone  line  to  the  poles  main- 
tained by  a  telegraph  company,  may  apply  by  petition  in  writing, 
to  the  county  court  of  the  county  in  which,  or  partly  in  which,  the 
line  of  poles,  to  which  it  is  desired  to  attach  such  wires,  is  situa- 
ted, stating  that  they  wish  to  attach  a  line  of  wires  to  such  poles. 
The  court  so  petitioned  to,  shall  appoint  three  disinterested  per- 
sons, as  commissioners,  who  shall  make  examination,  and  deter- 
mine whether  such  line  can  be  so  attached,  without  injury  to  the 
company  owning  the  poles,  and  if  they  are  of  the  opinion  that  the}' 
can  be  so  attached,  shall  so  report  to  the  court,  and  shall  also  re- 
port what,  in  their  opinion,  would  be  a  fair  annual  compensation 
to  be  paid  by  the  persons  desiring  to  attach  such  telephone  lines, 
for  the  use  of  such  poles.  The  court  may  establish  such  report, 
or  they  may  reject  the  same,  and  appoint  new  commissioners,  to 
re-examine  and  report.  If  a  report  is  finally  established,  recom- 
mending that  the  telegraph  company  allow  the  use  of  its  poles,  for 
a  compensation  specified  in  such  report,  such  company  shall 
so  allow  the  use  of  their  poles,  on  tender  of  such  compensation, 
and  if  they  hinder,  or  obstruct  persons,  so  authorized  to  attach 
their  lines  thereto,  ma}r  be  proceeded  against  b}r  the  court  estab- 
lishing the  report,  as  for  contempt.4 

1  Rev.  Laws  Vt.  1880,  §  3647. 

2  Ibid.  §  3648. 

3  Ibid.  §  3649. 

Vt.  Laws,  1882,  p.  74,  §  1. 


86  USE    OF    STREETS    AND    HIGHWAYS. 

"The  petition,  with  a  citation  for  that  purpose,  shall  he  served 
on  such  telegraph  company,  at  least  twenty  days  before  the  sitting 
of  the  court  to  which  such  petition  is  preferred.1 

••Such  telephone  wires,  when  affixed  to  the  poles  of  a  telegraph 
company,  under  the  provisions  of  the  preceding  section,  shall  be 
put  up  in  such  a  manner  as  not  to  interfere  with  wires  already  af- 
fixed to  such  poles."2 

Such  a  regulation  has  been  established  by  the 
Board  of  Public  Improvements  of  the  City  of  St. 
Louis,  under  the  authority  of  municipal  ordinances, 
which  prohibits  the  placing  of  any  wires,  tubes  or 
cables,  conveying  electricity,  along  or  across  any  of 
the  streets,  alleys,  or  public  places  in  the  City  of  St. 
Louis,  except  on  condition  (among  other  things)  of 
giving  a  penal  bond  in  the  sum  of  $20,000  "that  he 
or  it  will  comply  with  all  the  regulations  made  by 
the  Board  of  Public  Improvements  having  reference 
to  the  subject  embraced  in  this  or  any  other  ordi- 
nance for  the  purpose  herein  named."  Among  the 
regulations  of  the  Board  of  Public  Improvements 
thus  imposed  upon  electric  companies  as  a  con- 
dition precedent  so  to  place  their  wires,  tubes  or 
cables,  is  the  following:  "No  permit  shall  here- 
after be  granted  for  the  erection  of  poles  unless  the 
party  making  the  application  shall,  in  writing, 
agree:  1.  To  erect  poles  of  such  dimensions  as  to 
admit  of  at  least  fifteen  cross-bars  of  the  usual  size, 
at  the  ordinary  distance,  being  placed  thereon,  except 
by  special  permission  of  the  Board.  *  *  *  3.  That 
it  will  grant  to  any  other  company  requiring  electric 
light  wires  for  its  business,  the  right  to  use  one  or 
more  of  the  cross-bars  on  its  poles,  at  an  annual 
rental  of  forty  cents  for  a  half  cross-bar,  and  sixty 

1  Vt.  Laws  1882,  p.  74,  §  2. 

2  Ibid.  §  3. 


STATUTES USE    OF    EXISTING    POLES.  87 

cents  for  a  full  cross-bar,  except  in  cases  where  the 
party  asking  for  room  on  another  company's  poles 
is  itself  charging  that  company  a  higher  rent  per 
cross-bar  on  its  own  poles  heretofore  erected,  in 
which  case  an  equal  rental  may  be  demanded  for 
wires  on  poles  erected  under  these  rules."  Another 
regulation  of  the  St.  Louis  Board  of  Public  Improve- 
ments, under  the  head  of  "  Rules  for  the  guidance 
of  the  Board,"  is  as  follows  :  "  No  permit  shall  be 
issued  for  more  than  one  line  of  poles  on  any  street, 
so  long  as  the  wires  of  the  different  parties  can  be 
accommodated  by  the  poles  on  one  line  under  the 
regulations  above  stated.  No  permit  for  a  third 
line  of  poles  shall  be  given,  except  in  case  both 
sides  of  the  street  are  already  occupied  by  poles, 
erected  under  former  permits,  owned  by  parties 
who  refuse  to  comply  with  the  above  regulations  ; 
such  parties  not  being  entitled  to  the  privilege  of 
using  the  poles  erected  by  companies  which  con- 
form to  these  regulations." 

§  58.  Statutes  Restraining  Invasions  of  Private 
Property. — Statutes  have  been  found  necessary  in 
some  of  the  States  to  restrain  such  companies  from 
invading  private  premises  with  their  wires  and  ap- 
pendages.    One  of  these  in  Ohio  is  as  follows : 

"No  such  company  shall,  without  the  consent  of  the  owner 
thereof,  in  writing,  enter  a  building  or  edifice,  or  use  or  appro- 
priate any  part  thereof,  or  erect  any  telegraph  pole,  pier,  or 
abutment  in  any  yard  or  enclosure  within  which  an  edifice  is  situ- 
ate, nor,  in  cases  not  provided  for  in  section  three  thousand  four 
hundred  and  sixty-one,  erect  any  telegraph  pole,  pier,  abutment, 
wires,  or  other  fixtures,  so  near  to  any  edifice  as  to  occasion  injury 
thereto,  or  risk  of  injury,  in  case  such  pole,  pier,  or  abutment  be 
overthrown,  nor  injure  or  destroy  any  fruit  or  ornamental  trees."1 

1  Rev.  Stats.  Ohio,  §  3457. 


88  USE    OF    STREETS    AND    HIGHWAYS. 

Another  statute  of  the  same  State  is  as  follows  : 
"That  any  person  engaged  either  for  himself,  or  as  an  officer, 
clerk,  agent,  servant,  or  other  employe  of  any  corporation,  firm, 
or  person,  doing  business  wholly  or  partly  in  the  State  of  Ohio,  as 
receivers  and  transmitters  of  messages  or  other  communications, 
either  by  telegraph,  telephone,  or  other  similar  means,  or  of  airy 
electric  light,  district  telegraph,  or  other  company,  person,  firm, 
or  corporation,  who  shall  enter  into  or  upon  the  premises,  building 
or  buildings  of  another,  for  the  purpose  of  constructing,  altering, 
repairing,  or  examining  the  wires,  poles,  insulators,  frames,  or 
other  appendages,  belonging  to  such  corporation,  company,  firm, 
or  person,  without  the  written  consent  of  the  owner  or  agent  of 
such  premises,  building  or  buildings,  or  shall  attach  thereto  any 
wire,  pole,  insulator,  frame,  or  other  appendage  whatsoever,  with- 
out such  consent,  shall  be  fined  not  less  than  ten  or  more  than  one 
hundred  dollars."1 

A  statute  of  Rhode  Island  is  as  follows : 

"No  person  shall  place  any  telegraph  or  telephone  lines  or  poles, 
or  any  fixtures  appertaining  thereto,  upon  airy  private  property, 
without  the  consent  of  the  owners  thereof.2 

"No  person  shall  labor  upon  the  work  of  erecting,  or  repairing, 
any  telegraph  or  telephone  line,  belonging  to  an}'  telegraph  or  tel- 
ephone company,  without  having  conspicuously  attached  to  his 
dress  a  medal  or  badge,  on  which  shall  be  legibly  inscribed  the 
name  Of  the  owners  thereof,  by  whom  he  is  employed,  and  a  num- 
ber, by  which  he  can  be  readily  identified.3 

"Every  person  who  shall  violate  any  of  the  provisions  of  the  pre- 
ceding two  sections,  shall  be  fined,  not  exceeding  twenty  dollars, 
or  be  imprisoned,  not  exceeding  three  months."4 

A  statute  of  Vermont  is  as  follows  : 

••Every  person,  or  corporation,  maintaining,  or  operating  a  tel- 
ephonic, telegraphic,  or  other  electrical  line,  who  cuts  down,  mu- 
tilates, or  injures  the  trees  standing  upon  the  land  of  another,  and 
anyone  who,  in  any  manner  affixes,  or  causes  to  be  affixed,  to  the 
property  of  another,  any  post,  structure,  fixture,  wire,  or  other  ap- 
paratus for  telephonic,  telegraphic  or  other  electrical  communiea- 

1  Ohio  Act  of  April  29,  1885;  Laws  1885,  p.  1GG,  §  1. 

2  Gen.  Stats.  R.  I.  1882,  p.  680,  §  48. 

3  Ibid.  §  49. 

4  Ibid.  §  50. 


BY  TELEGRAPH  AND  TELEPHONE  COMPANIES.    89 

tion,  without  first  having  procured  the  right  so  to  do,  by  applica- 
tion to  and  determination  of  the  selectmen  of  the  town,  agreeably 
to  chapter  one  hundred  and  sixty-three  of  the  Revised  Laws 
of  Vermont,  or  first  obtaining  the  consent  of  the  owner,  or  lawful 
agent  of  the  owner  of  such  property,  shall,  on  complaint  of  such 
owner,  or  his  tenant,  be  punished  by  fine  not  exceeding  one  hun- 
dred dollars."1 

§  59.  Statutes  Authorizing'  the  Use  of  Roads  and 
Streets  hy  Telegraph  and  Telephone  Companies. — 
Statutes  exist  in  several  of  the  States  authorizing 
the  use  of  public  roads  and  streets  by  telegraph  and 
telephone  companies  in  the  erection  of  their  poles 
and  the  stringing  of  their  wires.  The  following 
statute  of  Virginia  may  be  given  as  an  example  : 

"Every  telegraph  and  every  telephone  company,  incorporated 
by  this  or  any  other  State,  or  by  the  United  States,  may  construct, 
maintain,  and  operate  its  line  along  any  of  the  State  or  county 
roads,  or  works,  and  over  the  waters  of  the  State,  and  along  and 
parallel  to  any  of  the  railroads  of  the  State, provided  the  ordinary 
use  of  such  roads,  works,  railroads,  and  waters,  be  not  thereby 
obstructed ;  and  along,  or  over,  the  streets  of  any  city,  or  town, 
with  the  consent  of  the  council  thereof.2 

"Such  company  may  contract  with  any  person  or  corporation, 
the  owner  of  lands,  or  of  any  interest,  franchise,  privilege,  or  ease- 
ment therein,  or  in  respect  thereto,  over  which  such  line  is  proposed 
to  be  constructed,  for  the  right  of  way,  for  erecting,  repairing, 
and  preserving  its  poles  and  other  structures,  necessary  for  oper- 
ating its  line,  and  the  right  of  way,  for  the  erection  and  occupation 
of  offices,  at  suitable  distances  along  its  line,  for  public  accommo- 
dation.3 

"If  the  company  and  such  owner  cannot  agree  on  the  terms  of 
such  contract,  the  company  shall  be  entitled  to  such  right  of  way, 
upon  making  just  compensation  therefor  to  such  owner.  Such 
compensation  shall  be  ascertained  and  made,  as  provided  in  chap- 
ter forty-six,  for  the  acquisition  of  lands  by  a  company  incorpo- 
rated for  a  work  of  internal  improvement,  when  such  internal 
improvement  company  cannot  agree  on  the  terms  of   the  purchase 

1  Vt.  Laws  1884,  p.  102,  §  1. 

2  Va.  Code  1887,  §  1287. 
:i  Ibid.  §  1288. 


90  USE    OF    STREETS    AND    HIGHWAYS. 

with  those  entitled  to  the  lands  wanted  for  the  purpose  of  the 
company.  The  title  which  may  be  acquired  by  a  telegraph  or 
telephone  company,  under  this  section,  shall  be  only  to  a  right  of 
way  for  the  purposes  stated  in  the  preceding  section  :  and  no  right 
oi  way  acquired  by  any  such  company."  under  this,  or  the  preced- 
ing section,  shall  be  to  the  exclusion  of  other  like  companies  from 
having,    or   acquiring,  a    like  right    of    way  over  the  same  lands.1 

"The  three  preceding  sections  shall  be  subject  to  repeal,  alter- 
ation, or  modification,  and  the  rights  and  privileges  acquired 
thereunder  shall  be  subject  to  revocation  or  modification,  by  the 
General  Asembly.  at  its  pleasure."2 

A  statute  of   Connecticut  in  like  manner  enacts  : 

••Every  telegraph  or  telephone  company  may  maintain  and 
construct  lines  of  telegraph  or  telephone  upon  any  highway,  or 
across  any  waters  in  this  State,  by  the  maintenance  and  erection 
of  the  necessary  fixtures,  including  posts,  piers,  or  abutments  for 
sustaining  wires:  but  the  same  shall  not  be  so  constructed  as  to 
incommode  the  public  travel  or  navigation,  nor  to  injure  any  tree 
without  the  consent  of  the  owner;  nor  shall  such  company  con- 
struct any  bridge  across  any  waters;  and  said  lines  shall  be  per- 
sonal property.3 

"No  telegraph,  telephone,  or  electric  light  company  or  associa- 
tion, nor  any  company  or  association  engaged  in  distributing  elec- 
tricity" by  wires  or  similar  conductors,  or  in  using  an  electric  wire 
or  conductor  for  any  purpose,  may  hereafter  exercise  any  powers 
which  may  have  been  conferred  upon  it  to  erect  or  place  wires, 
conductors,  fixtures,  structures,  or  apparatus  of  any  kind  over, 
on.  or  under  any  highway  or  public  ground,  or  to  change  the  lo- 
cation of  the  same,  without  the  consent  of  the  adjoining  proprie- 
tors, or  in  case  such  consent  cannot  be  obtained,  without  the  con- 
sent in  writing  of  two  of  the  county  commissioners  of  the  county 
in  which  it  is  desired  to  exercise  such  powers,  which  shall  be  given 
only  after  a  hearing  upon  due  notice  to  such  proprietors ;  and 
the  fees  of  such  commissioners  shall  be  paid  by  such  company."4 

•  A  statute  of  the  Territory  of  Dakota  enacted  as 
follows  : 


i  Va.  Code  1SS7,  §  1289. 

-  Ibid.  §  1290. 

3  Gen.  Stat.  Conn.  18S7,  §  3044. 

*  Ibid.  §  3945. 


BY  TELEGRAPH  AND  TELEPHONE  COMPANIES.   91 

"There  is  hereby  granted  to  the  owners  of  any  telegraph  or  tel- 
ephone lines  operated  in  this  Territory,  the  right  of  way  over  lam  Is 
and  real  property  in  this  Territory,  and  the  right  to  use  public 
grounds,  streets,  alleys,  and  highways  in  this  Territory,  subject 
to  the  control  of  the  proper  municipal  authorities  as  to  what 
grounds,  streets,  alleys,  or  highways  said  lines  shall  run  over  or 
across,  and  the  place  the  poles  to  support  the  wires  are  located ; 
the  right  of  way  over  real  property  granted  in  this  Act  may  be  ac- 
quirer! in  the  same  manner  and  b}r  like  proceedings,  as  provided 
for  railroad  corporations. ' ' l 

A  statute  of  Illinois  likewise  enacts  : 

"It  shall  be  lawful  for  any  person  or  persons  living  on  the  line 
of  any  public  highway,  street  or  alley,  outside  of  any  incorporated 
city,  village,  or  town  in  this  State,  or  on  any  private  road  lead- 
ing to  such  highway,  street,  or  alley,  to  construct,  operate  and 
maintain  a  line,  or  lines,  of  telegraph  or  telephone  extending  from 
house  to  house,  as  the  parties  interested  in  the  construction  of 
such  lines  may  desire.2 

"For  the  purpose  of  constructing  and  maintaining  such  lines  of 
telegraph  or  telephone,  the  parties  in  interest  may  set  the  necessary 
poles  or  posts  on  which  to  place  the  wires  and  insulators  of  such 
lines,  in  any  of  the  public  streets,  highways,  or  alleys,  or  in  any 
private  road  leading  to  such  highways,  streets,  or  alleys  outside  of 
the  incorporated  cities,  villages,  or  towns  in  this  State,  along  which 
such  lines  may  pass ;  provided,  such  poles  or  posts  shall  be  placed 
along  the  boundaries  of  such  highways,  streets,  or  alleys,  at  such 
distances  therefrom  as  the  authorities  having  control  thereof  may 
direct ;  and  provided  further,  that  the  wires  necessary  for  such 
lines  shall  not  be  less  than  fifteen  feet  above  the  ground  :dong 
such  boundaries,  and  not  less  than  twenty  feet  at  any  public  or 
private  crossing,  and  shall  be  so  placed  as  not  in  any  manner  to 
interfere  with  such  crossing.3 

"Any  person  who  shall  unlawfully  and  intentionally  injure, 
molest,  or  destroy  any  of  said  lines,  or  the  material  or  property 
belonging  thereto,  or  shall  in  any  manner  interfere  with  the  proper 
working  of  such  lines,  shall,  on  conviction  thereof,  be  deemed 
guilty  of  a  misdemeanor,  and  lie  punished  by  a  fine  not  exceed- 
ing one   hundred  dollars;  said  fine  to  be  recoverable  in  any  court 

1  Comp.  Laws  Dakota  Ter.  1887,  §  3025. 

2  Rev.  Stats.  111.  6th  ed.,  p.  1471,  §  1. 

3  Ibid.  §  2. 


92  USE    OF    STREETS    AND    HIGHWAYS. 

having  jurisdiction  of  the  same  ;  provided,  that  prosecution  under 
the  foregoing  provision  of  this  section  shall  not,  in  any  manner, 
prevent  a  recovery  by  the  person  or  persons  entitled  thereto,  of 
the  amount  of  damages  done  to  such  lines."1 

A  statute  of  Minnesota  enacts  as  follows  : 

"Any  number  of  persons,  not  less  than  five,  may  associate 
themselves  and  become  incorporated,  for  the  purpose  of  building, 
improving,  and  operating  railways,  telegraphs,  pneumatic  tube 
lines,  sul (-way  conduits  for  the  passage,  operation  and  repair  of 
electric  and  other  lines  or  pipes,  canals,  or  slack-water  navigation, 
upon  any  river,  bay  or  lake,  and  all  works  of  internal  improvement 
which  require  the  taking  of  private  property,  or  any  easement 
therein.      *     *     *"2 

The  Revised  Statutes  of  Missouri  contain  this 
provision  : 

"Companies  organized  under  the  provisions  of  this  article  for 
the  purpose  of  constructing  and  maintaining  telephone  or  mag- 
netic telegraph  lines,  are  athorized  to  set  their  poles,  piers,  abut- 
ments, wires  and  other  fixtures,  along  and  across  any  of  the  pub- 
lic roads,  streets  and  waters  of  this  State,  in  such  a  manner  as 
not  to  incommode  the  public  in  the  use  of  such  roads,  streets  and 
waters  :  provided,  any  telegraph  or  telephone  company  desiring 
to  place  its  wires  and  other  fixtures  under  ground,  in  any  city, 
they  shall  first  obtain  consent  from  said  city  through  the  municipal 
authorities  thereof."3 

A  statute  of  Nebraska  enacts  as  follows  : 

"That  any  telegraph  or  telephone  compairy,  incorporated  or  do- 
ing business  in  this  State,  shall  be  and  is  hereby  granted  the  right 
of  way  along  any  of  the  public  roads  of  this  State  for  the  erection 
of  poles  and  wires  ;  provided  that  poles    shall  be  set  at  least  six 

1  Rev.  Stat.  111.  (6th  ed.)  p.  1471,  §  3. 

2  2  Gen.  Stats.  Minn.  p.  304,  §  1,  as  amended  by  Act  of  1875,  ch.  14, 
§1;  18S5,  ch.  18;  1887,  ch.  161.  The  legislature  of  Mississippi  passed 
"  An  Act  to  encourage  and  facilitate  the  construction  of  telegraph,  tele- 
phone and  other  like  lines,"  in  1886  (Miss.  Laws  1886,  p.  93\  in  eleven 
sections  which  provide  for  the  condemnation  of  the  right  of  way  by 
such  companies. 

3  Mo.  Rev.  Stat*.  1879,  §  S79;  as  amended,  Id.  18S9,  §  2721.  See  State 
v.  Flad,  23  Mo.  App.  185;  Hannibal  v.  Missouri,  etc.  Tel.  Co.,  31  Mo. 
App.  29. 


BY  TELEGRAPH  AND  .  TELEPHONE  COMPANIES.    93 

feet  within  the  boundary  line  of  said  roadway,  and  not  placed  so 
as  to  interfere  with  road  crossings."1 

A  statute  of  New  Hampshire  contains  these  pro- 
visions : 

"The  proprietors  of  any  telegraph  line,  or  of  any  telephone  ex- 
change, or  line  of  telephones  used  for  the  transmission  of  spoken 
messages,  by  means  of  the  electric  speaking  telephone,  or  of  lines 
for  establishing  electric  lights  in  this  State,  may  erect  and  main- 
tain the  necessary  poles  and  structures,  and  stretch  the  necessary 
wires  for  the  use  of  such  telegraph  line  or  telephone  exchange,  or 
line  of  telephones,  or  line  for  electric  lighting,  over,  across,  and 
along  any  public  highway  in  this  State,  or  may  lay  the  same  under 
the  surface  of  any  such  highway.-2 

"Such  telegraph,  telephone,  or  electric  lighting  poles,  struct- 
ures and  wires  shall  be  erected  and  maintained  subject  to  the  pro- 
visions of  chapter  80  of  the  General  Laws  of  this  State  relating  to 
telegraphs,  which  are  hereby  made  applicable  to  lines  of  wire  for 
telephonic  and  electric  lighting  purposes  ;  and  no  poles,  structure's 
or  wires  are  hereby  authorized  that  shall  in  any  way  impede  or  ob- 
struct the  free  and  safe  use  of  any  highway  for  public  travel,  nor 
that  shall  interfere  with  or  obstruct  the  safe,  free,  and  convenient- 
use  of  or  access  to  or  from,  any  lands  or  buildings  adjoining  or 
near  such  highway ;  and  no  such  poles  or  other  structures  shall  be 
erected,  or  wires  stretched,  by  any  of  such  proprietors,  on,  over, 
or  across  the  lands  or  buildings  of  any  individuals,  or  corporations, 
without  their  consent ;  and  no  right  shall  be  acquired  by  the  use 
of  wires  stretched  on,  over,  or  across  the  lands  or  buildings  of  any 
such  individual  or  corporation,  for  any  length  of  time."3 

A  statute  of  Louisiana  is  as  follows  : 

"Corporations  chartered  or  formed,  under  the  laws  of  this  or  of 
any  other  State,  or  under  the  laws  of.  the  United  States,  for  the 
purpose  of  transmitting  intelligence  by  magnetic  telegraph  or  tele- 
phone, or  other  system  of  transmitting  intelligence,  the  equivalent 
thereof  which  may  be  hereafter  invented  or  discovered,  may  con- 
struct [and]  maintain  such  telegraph,  telephone,   or  other  lines 

1  Neb.  Laws  1887,  p.  634,  §  1. 

2  N.  H.  Laws  1881,  cb.  54,  p.  472,  §  1. 

3  Ibid.  §  2.  Section  13  of  the  same  statute  declares:  "The  use  of 
tbe  highways  of  this  State  by  telegraph,  telephone  and  electric  lighting 
poles,  structures  and  wires,  under  and  in  accordance  with  tbe  provisions 
of  this  act,  is  hereby  declared  to  be  a  public  use  of  such  highways." 


94  USE   OF   STREETS    AND    HIGHWAYS. 

necessary  to  transmit  intelligence  along  all  State,  parish,  or  public 
roads  or  public  works,  and  along  and  parallel  to  any  of  the  rail- 
roads in  the  State,  and  along  and  over  the  waters  of  this  State; 
provided,  that  the  ordinary  use  of  sneh  roads,  works,  railroads 
and  waters  be  not  thereby  obstructed';  and  along  the  streets  of 
any  city,  with  the  consent  of  the  council  or  trustees  thereof;  and 
Niich  companies  shal  be  entitled  to  the  right  of  way  over  all  lands 
belonging  to  the  State,  and  over  the  lands,  privileges  and  servi- 
tudes of  other  persons  and  corporations,  and  the  right  to  erect 
poles,  piers,  abutments  and  other  works  necessary  for  construct- 
ing, working,  operating  and  maintaining  their  lines  and  works, 
upon  making  just  compensation  therefor.  That  in  the  event  such 
company  shall  fail,  on  application  therefor,  to  secure  such  right  by 
consent,  contract  or  agreement  upon  just  and  reasonable  terms, 
then  such  companies  or  corporations,  shall  have  the  right  to  pro- 
ceed to  expropriate  the  same,  as  provided  in  and  by  the  laws  of  the 
State  relative  to  expropriation  of  lands  for  railroads  and  other 
works  of  public  utility;  and  shall  so  construct  their  works  as  not 
to  impede  or  obstruct  the  full  use  of  the  highways,  navigable  wa- 
ters, or  the  drainage  or  natural  servitudes  of  the  land  over  which 
the  right  of  way  may  be  exercised.  But  no  company  operating 
under  the  provisions  of  this  act  shall  have  the  power  to  contract 
with  the  owners  of  land  or  with  any  other  corporation,  for  the 
right  to  erect  and  maintain  any  telephone,  telegraph  or  other  line 
for  the  speedy  transmission  of  intelligence  over  his  or  its  lands, 
privileges  or  servitudes,  to  the  exclusion  of  the  lines  of  other 
companies  operating  under  the  provisions  of  this  act."1 

The  Revised  Statutes  of  Ohio  contain  elaborate 
provisions  on  the  subject  of  telegraph  companies. 
One  of  them  is  as  follows  : 

"A  magnetic  telegraph  company,  heretofore  or  hereafter  crea- 
ted, may  construct  telegraph  lines,  from  point  to  point,  along  and 
upon  any  public  road,  by  the  erection  of  the  necessary  fixtures, 
including  posts,  piers  and  abutments  necessary  for  the  wires;  but 
the  same  shall  not  incommode  the  public  in  the  use  of  such  roads."2 

1  La.  Itev.  Stats,  as   amended   by  Act  of  April  10,  1SS0   (Laws  18S0, 
p.  16S). 

2  Rev.  Stats.  Ohio,  §  3454. 


NEGLIGENT    INJURIES    BY    THESE    COMPANIES.         95 


CHAPTER   IV. 

NEGLIGENT  INJURIES  BY  AND  TO   THESE   COMPANIES. 

Article  I.        General  Views. 

Article  II.      Injuries  in  the  Use  of  Streets  and  Highways. 

Article  III.    Injuries  to  their  Own  Employees. 


Article  I.— GENERAL  VIEWS. 

Section. 

63.  General  Views  of  the  Liability  of  Private  Corporations  Owning 

Public  Works. 

64.  Theories  on  which  Electrical  Companies  Liable  for  Negligence. 

65.  Whether  a  Quasi  Insurer:     Collecting  Dangerous  Agencies  on 

One's  Own  Land. 

66.  Reasonable  Care  is  Proportionate  to  Danger  of  Mischief. 

67.  How  Far  Liability  Rests  on  the  Principle  of  Trespass. 

68.  Under  the  Civil  Code  of  Louisiana. 

69.  Non-Liability  of  Postmaster-General  Operating  Postal  Telegraph. 

§  63.  General  Views  of  the  Liability  of  Private 
Corporations  Owning:  Public  Works. — The  writer 
has  endeavored  to  give  in  his  work  on  Negligence 
a  general  view  of  the  liability  of  private  corpora- 
tions owning  public  works,  in  actions  for  civil 
damages  on  the  grounds  of  negligence  and  nuisance, 
showing  especially  the  nature  and  extent  of  their 
liability  for  failing  to  repair  the  public  streets  and 
highways  which  they  have  broken,1  and  for  injuries 

1  1  Thomp.  Neg.  pp.  555-567. 


96        NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

to  land-owners '  through  negligence  in  the  perform- 
ance of  ultra  vires  or  gratuitous  acts,2  etc.  It  may 
he  useful  in  this  place  to  recur  to  the  general  prin- 
ciple which  has  been  already  briefly  alluded  to,:' 
and  which  is  liable  to  come  into  constant  appli- 
cation in  cases  where  the  action  is  by  the  owners  or 
occupiers  of  land  for  damages  on  the  theory  of  negli- 
gence or  nuisance.  That  principle  is  that  such 
companies  are  not  liable  for  the  careful  and  proper 
exercise  of  their  statutory  powers.4     This  principle 


1  1  Thomp.  Neg.  p.  5G7. 

2  Id.  p.  573. 

3  Ante,  §  28. 

4  The  following  cases  may  be  referred  to  as  illustrating  this  principle: 
British  Cast-Plate  Manufacturers  v.  Meredith,  4  Term  Rep.  794; 
Schuylkill  Nav.  Co.  v.  McDonough,  33  Pa.  St.  73;  Bordentown,  etc. 
Turnpike  Co.  v.  Camden,  etc.  R.  Co.,  17  N.  J.  L.  314;  Hatch  v.  Ver- 
mont, etc.  R.  Co.,  25  Vt.  49;  Sutton  v.  Clark,  G  Taunt.  29;  Boulton  v. 
Crowther,  2  Barn.  &  Cress. '703;  Pollock,  C.  B.,  in  Whitehouse  v. 
Birmingham  Canal  Co.,  25  L.  J.  (Exch.)  27;  Henry  v.  Pittsburg,  etc. 
Bridge  Co.,  S  Watts  &  S.  (Pa.)  58;  Shrunk  v.  Schuylkill  Nav.  Co.,  14 
Serg.  &  R.  (Pa.)  71;  Commonwealth  v.  Fisher,  1  Pa.  467;  Mononga- 
hela  Nav.  Co.  v.  Coons,  6  Watts  &  S.  (Pa.)  101;  Susquehanna  Canal 
Co.  v,  Wright,  9  Watts  &  S.  (Pa.)  9;  Lansing  v.  Smith,  S  Cow.  (N.  Y.) 
146;  Cleveland,  etc.  R.  Co.  v.  Speer,  56  Pa.  St.  325,  334;  Stowell  v. 
Flagg,  11  Mass.  364;  Stevens  v.  Middlesex  Canal  Co.,  12  Mass.  466; 
Piscatauqua  Bridge  v.  New  Hampshire  Bridge,  7  N.  H.  35;  Hollisterv. 
Union  Co.,  9  Conn.  436;  Burroughs  v.  Housatonic  R.  Co.,  15  Conn. 
124.  In  the  leading  ca?e  of  Mersey  Docks  Trustees  v.  Gibbs,  in  the 
House  of  Lords,  L.  R.  1  H.  L.  93,  112, Mr.  Justice  Blackburn,  in  giving 
the  opinion  of  the  judges,  said:  "If  the  legislature  directs  or 
authorizes  the  doing  of  a  particular  thing,  the  doing  of  it  cannot  be 
wrongful;  if  damage  results  from  the  dojng  of  that  thing,  it  is  just  and 
proper  that  compensation  should  be  made  for  it,  and  that  is  generally 
provided  for  in  the  statutes  authorizing  the  doing  of  such  things.  But 
no  action  lies  for  what  is  damnum  sine  injuria;  the  remedy  is  to  apply 
for  compensation  under  the  provision  of  the  statutes  legalizing  what 
would  otherwise  be  a  wrong.  This,  however,  is  the  case,  whether  the 
thing  is  authorized  for  a  public  purpose  or  a  private  profit.  No  action 
will  lie  against  a  railway  company  for  erecting  a  line  of  railway  au- 
thorized by  its  acts,  so  long  as  the  directors  pursue  the  authority  given 
them,  any  more  than  it  would  lie  against  the  trustees  of  a  turnpike 
road  for  making  their  road  under  their  acts,  though  the  one  road  is- 


GENERAL    GROUNDS    OF   LIABILITY.  97 

is  understood  to  exist  in  the  English  law  without 
qualification ;  but  in  the  American  law,  it  always 
assumes  that  the  statute  itself  is  within  the  consti- 
tutional powers  of  the  legislature ;  for,  while  in 
England  there  are  no  constitutional  restraints  upon 
the  Parliament,  yet  in  America  both  the  acts  of  the 
State  legislatures  and  of  the  Congress  of  the  United 
States  are  liable  to  be  declared  void  by  the  judicial 
courts  as  being  opposed  to  constitutional  inhibi- 
tions. But  the  English  courts  proceed  upon  the 
view  that  the  statutory  powers  granted  to  such 
companies  are  granted  subject  to  the  implication 
that  they,  will  exercise  them  in  the  proper  manner, 
by  the  proper  process,  without  negligence,  and  so 
as  not  to  cause  unnecessary  damage  to  others.1  In 
America,  it  has  been  said  to  be  "  well  settled  that 
an  injury  to  private  property  resulting  from  an  act 
authorized  by  law,  and  done  in  pursuance  of  the 
statute,  cannot  be  justified  unless  the  act  were  done 
by  one  acting  as  agent  or  in  behalf  of  govern- 
ment, or  to  effect  a  public  interest ;  and  the  statute 

made  for  the  profit  of  the  shareholders  in  the  company,  and  the  other 
is  not.  The  principle  is,  that  the  act  is  not  wrongful,  not  because  it  is 
for  a  public  purpose,  but  because  it  is  authorized  by  the  legislature." 

1  See  in  general  illustrations  of  this  proposition  the  following  English 
cases:  Gas-Light,  etc.  Co.  v.  St.  Mary  Abbot's,  15  Q.  B.  Div.  1;  Biscoe 
v.  Great  Eastern  Railway  Co.,  L.R.  16  Eq.  636;  Brine  v.  Great  Western 
Railway  Co.,  31  L.  J.  (Q.  B.)  101;  Lawson  v.  Great  Western  Railway 
Co.,  16  Q.  B.  643;  Clothier  v.  Webster,  30  L.  J.  (C.  P.)  306;  Chamber- 
lain v.  Chester,  etc.  Railway  Co.,  1  Exch.  180;  Broadbent  v.  Imperial 
Gas-Light  Co.,  20  L.  J.  (Ch.)  280;  Scott  v.  Manchester  (Mayor,  etc.),  1 
H.  &  N.  59;  s.  c,  2  H.  &  N.  204;  Nicholls  v.  Marsland,  2  Ex.  D.  1; 
Burgess  v.  Northwich  Local  Board,  L.  R.  6  Q.  B.  D.  264;  s.  C,  50  L.  J. 
(Q.  B.)  219;  Knock  v.  Metropolitan  Railway  Co.,  L.  R.  4  C.  P.  131; 
Geddis  v.  Baun  Reservoir  (Proprietors),  3  App.  Cas.  430;  Saddler  v. 
Staffordshire,  etc.  Co.,  58  L.  J.  (Q.  B.)  421.  Under  the  English  theory 
any  works  not  necessary  to  the  doing  of  what  the  statute  authorizes  are 
unprotected  and  may  give  rise  to  right  of  action  for  injuries  ensuing 
from  them.    Hornby  v.  Liverpool  Uniced  Gas  Co.,  47  J.  P.  2;>. 

(7) 


98        NEGLIGENT    INJURIES    BY    TIIKSK    COMPANIES. 

is  no  bar  to  an  action  for  damages  resulting  from 
such  act,  unless  it  provides  a  different  mode  of 
compensation."1  It  is  further  limited  so  far  that, 
in  many  cases  where  the  legislature  authorizes  the 
doing  of  an  act  by  an  individual  or  a  corporation, 
for  his  or  its  private  gain  or  benefit,  without  pro- 
viding for  the  assessment  or  payment  of  possible 
damages  which  may  thereby  result  to  individuals, 
the  courts  will  not  infer  that  the  legislature  in- 
tended that  the  citizen  should  be  damnified,  even 
for  the  public  benefit,  without  redress,  but  will 
imply  an  obligation  on  the  part  of  the  person  or 
corporation  for  whose  benefit  the  injury  has  been 
done,  to  pay  such  damages.  The  grantee  is  deemed 
to  accept  such  a  grant  subject  to  the  maxim  sic 
utere  tuo  id  alienum  non  hvdas.2  One  court  has 
gone  farther,  and  has  declared — the  Constitution 
of  the  State  being  silent  upon  the  question,  and  the 
court  understanding  the  Fifth  Amendment  to  the 
Federal  Constitution  to  be  restricted  to  the  United 


1  Delaware,  etc.  Canal  Co.  v.  Lee,  22  X.  J.  L.  247  (qualifying  the 
language  of  Xevius,  J.,  in  Van  Schoick  v.  Delaware,  etc.  Canal  Co.,  20 
X.  J.  L.  240).  This  view  of  the  law  is  supported  by  Sinnickson  v. 
Johnson,  17  X.  J.  L.  129,  Dayton  and  Xevius,  JJ.,  giving  forcible  opin- 
ions. Compare  Kogers  v.  Bradshaw,  20  Johns.  (X.  Y.)  735;  Steveus  v. 
Middlesex  Canal  Co.,  12  Mass.  466;  Shrunk  v.  Schuylkill  Xav.  Co.,  14 
Serg.  &  R.  (Pa.)  71 ;  Commonwealth  v.  Fisher,  1  Pa.  St.  467. 

2  Crittenden  v.  Wilson,  5  Cow.  (X.  Y.)  165,  per  Sutherland,  J.; 
Hooker  v.  Xew  Haven,  etc.  R.  Co.,  14  Conn.  147;  Baltimore,  etc.  R. 
Co.  v.  Reaney,  42  Md.  117;  Delaware,  etc.  Canal  Co.  v.  Lee,  22  X.  J. 
L.  243;  Gardner  v.  Xewburgh,  2  Johns.  Ch.  (X.  Y.)  162;  Sinnickson 
v.  Johnson,  17  X.  J.  L.  129;  1  Thomp.  Xeg.  pp.  105,  278.  279.  Contra: 
Dodd  v.  Williams,  3  Mo.  App.  27S.  Thus,  a  statute  authorized  John 
Denn  to  build  a  dam  across  a  navigable  creek,  foi  his  own  private  ad- 
vantage. This  protected  him  against  an  indictment  for  obstructing 
tne  navigation,  but  not  against  an  action  for  damages  for  flowing  the 
lands  of  an  adjacent  owner.  He  proceeded  to  execute  the  power  con- 
ferred upon  him  by  the  statute,  at  the  peril  of  paying  the  damages  he 
might  thereby  eaiise  to  others.    Sinnickson  v.  Johnson,  supra. 


GENERAL    GROUNDS    OF    LIABILITY.  99 

States  merely, — that  the  government  cannot  dam- 
nify private  persons,  even  for  the  public  benefit, 
without  making  compensation.1  So,  where  a  canal 
company's  act,  after  providing  for  the  purchase  by 
the  company  of  subjacent  mines,  on  notice  by  the 
owner  of  an  intention  to  work  them,  contained  a 
clause  reserving  to  the  owner  the  right  to  work  the 
mines,  "  provided  that  in  working  such  mines  no 
injury  be  done  to  the  said  navigation," — this  was 
held  to  mean  no  unnecessary  injury,  that  is,  no  in- 
jury except  such  as  might  arise  from  a  failure  to 
Work  the  mines  in  the  usual  and  customary  manner.2 
§  64.  Theories  on  which  Electrical  Companies 
L.iahie  for  Negligence. — These  companies  are  liable 
for  injuries  to  strangers — the  latter  being  without 
fault — in  consequence  of  defects  in  their  apparatus 
which  are  the  result  of  negligence  or  unskillfulness, 
or  of  the  negligence  or  unskillfulness  of  their  agents 
or  servants  in  using  the  same.  The  principles  upon 
which  this  liability  rests  cannot  be  gone  into  at 
length  in  a  special  work  like  this.     Generally  speak- 

1  Ten  Eyck  v.  Delaware,  etc.  Canal  Co.,  18  N.  J.  L.  200.  In  Sinnick- 
son  v.  Johnson,  17  N.  J.  L.  14G,  Dayton,  J.,  declared  the  Fifth  Amend- 
ment to  the  Federal  Constitution,  though  not  binding  on  the  States 
(Barron  v.  Baltimore,  7  Pet.  (U.  S.)  243 ;  Livingston  v.  Moore,  7  Pet. 
(U.  S.)  551),  "operative  as  a  principle'  of  universal  law."  The  same 
view  of  the  subject  was  taken  by  the  Supreme  Court  of  North  Carolina, 
in  the  absence  of  a  similar  constitutional  provision.  Raleigh,  etc.  R. 
Co.  v.  Davis,  2  Dev.  &  B.  (N.  C.)  451.  Under  like  circumstances  the 
Supreme  Court  of  South  Carolina,  by  a  divided  court,  ruled  that  com- 
pensation was  not  indispensable.  State  v.  Dawson,  3  II ill  (S.  C),  100. 
In  a  leading  case  in  Vermont  (Hatch  v.  Vermont,  etc.  R.  Co.,  25  Vt. 
49),  Redfield,  J.,  expressed  the  view  that  the  decision  of  the  minority 
of  the  South  Carolina  court,  as  expressed  by  Richardson,  J.,  is  the 
better  view. 

2  Dudley  Canal  Nav.  Co.  v.  Grazebrook,  1  Barn.  &  Adol.  59.  An 
elaborate  exposition  of  a  similar  statute  will  be  found  in  Dunn  v. 
Birmingham  Canal  Co.,  L.  R.  8  Q.  B.  42;  s.  c,  21  Week.  Rep.  266;  27 
L.  T.  (N.  S.)  683;  42  L.  J.  (Q.  B.)  34. 


100      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

ing,  every  one  is  under  a  social  obligation  to  use 
ordinary  or  reasonable  care  to  avoid  injuring 
others.  From  the  nature  of  the  case,  the  law  can 
furnish  no  exact  standard  by  which  to  measure  this 
degree  of  care.  It  is  the  care  which  a  prudent  and 
reasonable  man,  mindful  of  his  social  obligations, 
would  exercise  under  the  same  circumstances  ;  and 
whether  this  degree  of  care  has  been  exercised  is 
ordinarily  to  be  determined  by  the  judgment  of 
twelve  men  in  the  jury  box;  though  where  the  facts 
are  not  in  dispute,  and  the  inferences  to  be  drawn 
from  them  are  unequivocal,  it  may  be  determined 
by  the  judge  as  a  question  of  law.  He  may,  and 
often  does,  properly  say  that  there  is  no  evidence  of 
negligence,  and  nonsuit  the  plaintiff.  He  may  also 
say  that  an  unavoidable  inference  of  contributory 
negligence  arises  out  of  the  plaintiff's  own  evidence, 
and  nonsuit  him  on  that  ground.  But  where  there 
is  what  the  books  term  ''evidence  of  negligence," 
the  jury  must  ordinarily  be  left  to  say  whether  it  is 
sufficient  to  entitle  the  plaintiff  to  recover  damages, 
and,  if  so,  what  damages. 

§  65.  Whether  a  Quasi  Insurer  :  Collecting  Dan- 
gerous Agencies  on  One's  Own  Land. — It  may  be 
doubted  whether  persons  or  corporations  employing 
for  their  own  private  advantage  so  dangerous  an 
agency  as  electricity,  ought  not  to  be  regarded  as 
quasi  insurers,  as  toward  third  persons,  against 
any  injurious  consequences  which  may  flow  from  it. 
It  may  be  doubted  whether  one  who  collects,  or 
rather  creates,  so  dangerous  an  agency  on  his  own 
land,  ought  not  to  be  held  to  the  obligation  of  re- 
straining it,  that  is,  of  insulating  it,  at  his  peril ; 
which  was  the  obligation  put  upon  land-owners  in 


WHETHER    QUASI    INSURERS.  101 

respect  of  water,  which  from  its  nature  is  pressing 
outward  in  all  directions  and  continually  struggling 
to  break  through  any  artificial  barriers  by  which  it 
may  be  restrained.  That  principle  was  thus  laid 
down  by  Mr.  Justice  Blackburn,  in  giving  the  judg- 
ment of  the  court  of  Exchequer  Chamber  in  the 
celebrated  case  of  Fletcher  v.  Ry lands,  affirmed  by 
the  House  of  Lords  in  ipsissimis  verbis:  "We 
think  that  the  true  rule  of  law  is,  that  the  person 
who,  for  his  own  purposes,  brings  on  his  lands  and 
collects  and  keeps  there  anything  likely  to  do  mis- 
chief if  it  escapes,  must  keep  it  in  at  his  peril ;  and 
if  he  does  not  do  so,  is  prima  facie  answerable  for  all 
the  damage  which  is  the  natural  consequence  of  its 
escape.  He  can  excuse  himself  by  showing  that 
the  escape  was  owing  to  the  plaintiffs  default ;  or 
perhaps  that  the  escape  was  the  consequence  of  vis 
major,  or  the  act  of  God  ;  but  as  nothing  of  this 
sort  exists  here,  it  is  unnecessary  to  inquire  what 
excuse  would  be  sufficient.  The  general  rule  as 
above  stated  seems,  on  principle,  just.  The  person 
whose  grass  or  corn  is  eaten  down  by  the  escaping 
cattle  of  his  neighbor,  or  whose  mine  is  flooded  by 
the  water  from  his  neighbor's  reservoir,  or  whose 
cellar  is  invaded  by  the  filth  from  his  neighbor's 
privy,  or  whose  habitation  is  made  unhealthy  by 
the  fumes  and  noisome  vapors  of  his  neighbor's 
alkali  works,  is  damnified  without  any  fault  of  his 
own  ;  and  it  seems  but  reasonable  and  just  that  the 
neighbor  who  has  brought  something  on  his  own 
property  (which  was  not  naturally  there),  harmless 
to  others  so  long  as  it  is  confined  to  his  own  property, 
but  which  he  knows  to  be  mischievous  if  it  gets  on 
his  neighbor's,  should  be  obliged  to  make  good  the 


102    xk<;lk;k.\t  injuries  by  these  companies. 

damage  which  ensues  if  he  does  not  succeed  in  con- 
fining it  to  his  own  property.  But  for  his  act  in 
bringing  it  there  no  mischief  could  have  accrued  ; 
and  it  seems  but  just  that  he-  should,  at  his  peril, 
keep  it  there  so  that  no  mischief  may  accrue,  or  an- 
swer for  the  natural  and  anticipated  consequences. 
And  upon  authority,  this,  wo  think,  is  established 
to  be  the  law,  whether  the  things  so  brought  be 
beasts,  or  water,  or  filth,  or  stenches."1 

§  66.  Reasonable  Care  is  Proportionate  to  Dan- 
ger of  Mischief. — The  doctrine  of  the  case  cited  in 
the  preceding  section  has  not  met  with  approval  in 
all  American  jurisdictions ;  but  many  American 
courts  are  rather  disposed  to  place  the  liability  on 
the  land-owner  who  collects  dangerous  substances 
on  his  land  and  allows  them  to  escape  to  the  dam- 
age of  others,  on  the  principle  of  negligence,  and  to 
make  his  liability  turn  on  the  decision  of  the  ques- 
tion whether  he  exercised  reasonable  care  to  avoid 
the  catastrophe.2  But  even  under  this  rule  the 
same  measure  of  practical  justice  will  generally  be 
secured,  because  all  courts  agree  that  what  is  termed 
reasonable  care  is  a  degree  of  care,  watchfulness, 
skill  and  attention  proportionate  to  the  danger.3 

§  67.  How  far  Liability  Rests  on  the  Principle 
of  Trespass. — Where  the  injury  is  to  the  property  of 
another,  the  conceptions  of  the  early  common  law, 
as  found  in  the  case  of  Fletcher  v.  Rylands,4  un- 

1  Fletcher  v.  Rylands,  L.  R.  1  Exch.  265  (reversing  s.  C,  3  Hurl.  & 
Colt.  744) :  affirmed  in  H.  L.  sub.  nam.  Rylands  v.  Fletcher,  L.  R.  3  H. 
L.  330;  reported  in  full  in  1  Thomp.  Xeg.  1. 

2  1  Thomp.  Xeg.  101,  et  seq. 

3  Lynch  v.  Xurdin,  1  Ad.  &  El.  (X.  S.)  36,  per  Lord  Denman.  C.  J.; 
S.  C,  2  Thomp.  Xeg.  1140;  Xorthern  Central  R.  Co.  v.  Price.  29  Md. 
420;   Morgan  v.  Cox.  22  Mo.  373;  8.  c.  1  Thomp.  Xeg.  238. 

*  3  Hurl.  &  Colt.  774;  L.  R.  1  Exch.  265;  in  House  of  Lords,  sub. 
nom.,  Rylands  v.  Fletcher.  L.  R.  3  H.  L.  330. 


LIABILITY    ON    THEORY    OF    TRESPASS.  103 

doubtedly  proceed  on  the  ground  of  trespass ;'  and 
if  we  go  back  to  the  analogy  of  the  celebrated  Squib 
Case,2  the  same  is  true  where  the  injury  is  a  direct 
injury  to  the  person  in  the  nature  of  an  assault. 
Conceptions  still  exist  in  the  American  books  of 
the  law,  which  make  a  man  liable  for  the  conse- 
quences of  a  direct  invasion  of  another's  premises 
by  something  which  he  is  doing  on  his  own  land, 
in  itself  inherently  dangerous,  irrespective  of  neg- 
ligence. This  view  has  been  taken  where  the 
plaintiff's  premises  were  invaded  by  stones  thrown 
from  the  defendant's  quarry  in  blasting  rocks  ;3  but 
in  the  same  and  other  jurisdictions,  the  application 
of  this  doctrine  has  been  denied  in  the  case  of  in- 
juries caused  by  the  explosion  of  steam  boilers. 
Thus  it  has  been  held  that  one  who  erects  on  his 
own  premises  a  steam  boiler  having  in  it  no  defect 
known  to  him,  or  which  he  might  have  discovered 
by  the  exercise  of  ordinary  care  and  skill,  that  is  to 
say,  by  the  application  of  known  tests,  and  who 
operates  it  with  care  and  skill,  is  not  answerable  to 
an  adjacent  proprietor  for  damages  caused  by  its 
explosion.4  The  rule  of  the  ancient  common  law 
which  rested  the  liability  on  the  ground  of  trespass 
proceeded  on  a  view  which  was  characteristic  of 
that  law,  of  the  sacred  nature  of  the  rights  of 
property.     A  man's  house  was  his  castle,  and  his 


1  3  Wils.  403;    S.  C,  2  W.  Black.  892. 

2  Scott  v.  Shepherd,  2  W.  Black.  S92;  s.  c,  3  Wilson,  403. 

3  Hay  v.  Cohoes  Co.,  2  X.  Y.  159  (affirming  s.  c,  3  Barb.  42) ;  s.  c,  1 
Thomp.  Xeg.  72;  Tremaine  v.  Cohoes  Co.,  2  X.  Y.  163;  s.  c,  1  Thomp. 
Xeg.  76;  Scott  v.  Bay,  3  Md.  431 . 

4  Losee  v.  Buchanan,  51  X.  Y.  476,  affirming  8.  C,  42  How.  Pr.  (X. 
Y.)  3S5;  reversing  s.  C,  61  Barb.  (X.  Y.)  S6;  1  Thomp.  Xeg.  47.  See 
also  Marshall  v.  Wellwood,  3S  X.  J.  L.  339,  where  the  same  conclusion 
was  reached  on  similar  facts.    See  1  Thomp.  Xeg.  112. 


104     NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

field  was  his  battle  ground.  Neither  could  be  in- 
vaded by  another  with  impunity.  If  a  fire  broke 
out  by  misfortune  in  one  man's  house  and  spread 
to  his  neighbors,  he  was  bound  to  make  good  the 
loss  ;'  and  if  his  cattle  escaped  upon  the  land  of  an- 
other and  there  did  damage,  he  was  liable  without 
proof  of  negligence.2  The  rule  of  the  modern  law, 
which  rests  the  liability  on  the  failure  to  exercise 
reasonable  or  ordinary  care,  proceeds  on  concep- 
tions more  suitable  to  the  state  of  populous  and 
crowded  communities.  It  is  that  men  dwelling 
near  to  each  other  ought  not  to  stand  as  insurers 
against  every  possible  injury  that  may  proceed 
from  one's  premises  to  that  of  his  neighbor;  that 
such  a  liability  puts  too  great  a  burden  upon  the 
shoulders  of  every  one,  and  charges  him  with  re- 
sponsibility for  accidents  where  he  has  been  guilty 
of  no  failure  of  social  duty  to  his  neighbor.  Which 
of  these  two  principles  is  the  more  conducive  to  jus- 
tice leaves  open  a  wide  field  for  casuistry. 

§  68.  Under  the  Civil  Code  of  Louisiana. — The 
Civil  Code  of  Louisiana  (Art.  2316)  provides  that 
one  shall  be  liable  for  damages  occasioned  by  his 
negligence,  imprudence  or  want  of  skill.  This 
may  be   accepted  as  stating  the   rule  of  the  com- 

1  Filliter  v.  Phippard,  11  Q.  B.  347;  Beaulieu  v.  Finglam,  Yearb.  2 
Hen.  rv.,  fol.  IS,  pi.  16;  Rolle  Abr.  Action  sur.  Case,  B.  tit.  Fire. 

2  Mason  v.  Keeling,  12  Mod.  335;  s.  c,  1  Ld.  Raym.  606;  Rex  v. 
Huggins,  2  Ld.  Raym.  1583;  Dyer,  25,  pi.  162;  20  Vin.  Abr.  tit.  "Tres- 
pass,"' B,  424;  Millen  v.  Fandrye,  Poph.  161 ;  Jones  on  Bail.  131;  Jen- 
kins v.  Turner,  2  Salk.  662;  Decker  v.  Gammon,  44  Me.  322;  Goodman 
v.  Gay,  15  Pa.  St.  1S8;  Dickson  v.  McCoy,  39  N.  Y.  401;  Studwell  v. 
Ritcb,  14  Conn.  292;  Com.  Dig.  tit.  "Droit,"  M,  2;  3  Black.  Com.  211; 
Williams  v.  New  Albany  R.  Co.,  5  Ind.  Ill;  Lafayette,  etc.  R.  Co.  v. 
Shriner,  6  Ind.  141;  Page  v.  Hollingsworth,  7  Ind.  317;  Beckett  v. 
Beckett,  48  Mo.  396;  Dolph  v.  Ferris,  7  Watts.  &  S.  367;  Lyke  v.  Van 
Leuven,  4  Demo  (N.  Y.),  127;  s.  c,  1  N.  Y.  515;  Barnum  v.  Vandusen, 
16  Conn.  200;  Lee  v.  Riley,  34  L.  J.  (C.  P.)  212. 


NON-LIABILITY    OF    POSTMASTER-GENERAL.  105 

fflon,  as  well  as  of  the  civil  law.  The  same  code 
(Art.  2317)  imposes  a  liability  for  damages  caused 
by  things  in  one's  custody.  This  may  be  regarded 
as  imposing  a  liability  somewhat  analogous  to  that- 
laid  down  in  the  celebrated  case  of  Fletcher  v. 
Ry  lands.1  With  this  statute  in  force,  a  police  officer 
on  duty  at  a  bank  was  injured  by  the  explosion  of 
apparatus  used  in  lighting  the  building  by  elec- 
tricity. The  proximate  cause  of  the  injury  appeared 
to  be  the  insufficiency  of  the  fuse-catchers,  either 
in  number  or  in  capacity,  to  break  the  current  when 
it  should  become  too  strong.  It  was  held  that 
he  might  maintain  an  action  against  the  electric 
light  company.2 

.  §  69.  Non-Liability  of  Postmaster-General  Oper- 
ating- Postal  Telegraph. — Should  any  portion  of  the 
telegraph  service  pass  into  the  hands  of  the  Post- 
Office  department,  the  question  may  arise  as  to  the 
liability  of  the  Postmaster-General  for  negligence 
resulting  in  damages  to  private  persons.  Such  ac- 
tions have  been  more  than  once  attempted  against 
the  Postmaster-General  in  Great  Britain,  but  with- 
out  success;3    and   the   same   immunity   has  been 

1  Ante,  §  65. 

2  Yates  v.  Southwestern  Brush,  etc.  Co.,  40  La.  An.  467;  s.  c,  4 
South.  Rep.  250.  In  this  action  it  appeared  that  an  officer  of  defend- 
ant, the  B.Co.,  had  purchased  the  right  to  use  a  patent  for  incandescent 
lighting.  Soon  after  the  S.  Co.  was  organized,  all  the  officers  and  di- 
rectors except  the  president  being  the  same  as  those  of  the  B.  Co.  The 
officers  of  toe  bank  where  the  explosion  occurred  testified  that  their 
contract  was  with  the  B.  Co.,  which  was  notified  of  the  accident  and 
repaired  the  damage,  which  also  made  out,  collected  and  receipted  all 
bills.  The  S.  Co.  appeared  to  have  kept  no  independent  books,  and  a 
system  for  whose  use  it  had  contracted  was  operated  by  the  B.  Co. 
without  any  purchase :  Held,  that  the  S.  Co.  was  merely  an  auxiliary  of 
the  B.  Co.,  and  the  action  was  properly  brought  ugaiust  the  latter.   Ibid. 

'■'  Lane  v.  Cotton,  1  Ld.  Raym.  646;  Whitfield  v.  LeDespencer,  Cowp. 
754;  Jones  v.  Monsell,  6  Ir.  (C.  L.)  155. 


106     NEGLIGENT   INJURIES    BY    THESE    COMPANIES. 

extended  in  this  country  to  a  deputy  Postmaster- 
General,  or  local  postmaster,  and  his  assistants 
duly  appointed  and  qualified.1  These  decisions 
proceed  on  the  ground  that  th-e  officers  in  question 
were  acting  for  the  State,  and  not  as  individuals, 
and  that  they  were  not  performing  services  for  par- 
ticular persons  distributively,  as  a  sheriff  in  execut- 
ing process,  or  a  recorder  in  recording  a  deed.  But 
there  is  no  sense  whatever  in  the  attempted  dis- 
tinction which  exonerates  one  and  holds  the  other 
liable.  There  is  absolutely  no  sense  in  the  distinc- 
tion which  makes  the  postal  agent  who  transports 
and  delivers  your  letters,  thereby  acting  as  a  com- 
mon carrier  for  your  benefit  individually,  and  the 
sheriff  who,  at  your  request,  levies  an  attachment, 
or  the  recorder  who,  at  your  request,  records  a  deed. 
The  real  distinction  will  have  to  be  sought  on  better 
grounds  than  the  reasoning  of  the  courts.  By  a 
certain  British  statute,2  the  term  "the  company" 
in  the  Telegraph  Act,  1863,  shall,  "in  addition  to 
the  meaning  assigned  to  it  in  that  act,  mean  the 
Postmaster-General."  In  an  action  against  the 
Postmaster-General,  in  his  individual  capacity,  for 
negligently  opening  a  flagway  by  his  servants  for 
the  purpose  of  erecting  telegraph  posts,  it  was  held 
that  the  action  did  not  lie.3 

1  Schroyer  v.  Lynch,  S  Watts  (Pa.),  453;  Wiggins  v.  Hathaway,  6 
Barb.  (N.  Y.)  632;  Dunlop  v.  Munroe,  7  Cranch  (U.  S.)»  742;  Bolau  v. 
Williamson,  1  Brev.  (S.  C.)  181. 

2  Telegraph  Act  1S6S  (31  &  32  Vict.  ch.  110),  which  incorporates  the 
Telegraph  Act,  1S63,  26  &  27  Vict.  ch.  112,  §  2. 

8  .Jones  v.  Monsell,  6  Ir.  (C.  L.)  155. 


NEGLIGFNT    INJURIES    BY    THESE    COMPANIES.       107 


Article  II.— INJURIES  IN  THE  USE  OF  STREETS,  HIGH- 
WAYS AND  NAVIGATIONS. 

Section. 

70.  General  Proposition  in  Regard  to  Liability  for  Negligence  in  the 

Use  of  the  Streets. 

71.  License  from  the  City  no  Defense. 

72.  Proximate  and  Remote  Cause. 

73.  Contributory  Negligence  of  the  Traveler. 

74.  Contributory  Negligence  of  Driver  Not  Imputable  to  the  Passen- 

ger. 

75.  Poles  Erected  in  Part  of  the  Street  Prohibited  to  Travel. 

76.  Injuries  From  Improper  Location  of  Poles. 

77.  Collision  in  Consequence  of  Horse  Running  Away. 

78.  Injuries  From  Overhanging  Wires.  .- 

79.  Injuries  From  Guy  Wires. 

80.  Poles  Blown  down  by  Storms. 

81.  Right  of  Contribution  by  Municipal  Corporation  against  Electric 

Light  Company. 

82.  Obstructing  Navigation. 

83.  Vessels  Injuring  Submarine  Cables. 

84.  Electric  Trains  Frightening  Horses. 

85.  Certain  Evidential  Matters. 

§  70.  General  Proposition  in  Regard  to  Liability 
for  Negligence  in  the  Use  of  the  Streets. — If  a  tele- 
graph, telephone  or  electric  light  company  so  erects 
its  poles  or  suspends  its  wires  as  to  make  the  high- 
way dangerous  to  ordinary  travel,  and  if  a  traveler 
proceeding  with  ordinary  care,  comes  in  contact  with 
its  poles  or  wires,  so  erected  or  suspended,  and 
thereby  sustains  injury,   he,   or  any  other  person 


108      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

having  a  right  of  action  for  such  injury,  may  re- 
cover the  resulting  damages  of  the  company.1 

§  71.      License     from    the    City    no    Defense. — We 

have  already  seen  that  municipal  corporations  hold 
their  streets  as  a  trust  for  the  benefit  of  the  public; 
that  they  are  under  a  legal  obligation  to  keep  them 
in  repair;  and  that  they  are  indictable  at  common 
law  and  liable  to  an  action  for  damages  for  negli- 
gently failing  so  to  do.  As  they  are  thus  under  an 
affirmative  duty  toward  the  public  of  using  care  to 
keep  their  streets  safe  for  the  ordinary  purposes 
of  travel,  it  follows  that  they  can  not  license  a 
nuisance  in  them,  and  that  the  author  of  such  a 
nuisance  cannot  justify  under  such  a  license.  Ac- 
cordingly, in  an  action  for  damages  for  injuries 
occasioned  by  the  collision  of  plaintiff's  buggy  with 
a  telephone  pole  erected  by  the  defendant  so  as  to 
dangerously  obstruct  the  street,  the  license  of  the 
city  is  no  defense.2 

§  72.  Proximate  and  Remote  Cause. — But  although 
such'  a  company  may  set  its  poles  or  suspend  its 
wires  in  such  a  location  or  in  such  a  manner  as  to 
become  liable  to  an  indictment  for  a  public  nui- 
sance, it  would  not  follow  that  it  would  be  an  in- 
surer of  private  persons  against  remote  conse- 
quences of  such  negligence.  The  rule  causa  prox- 
ima,  non  remota  spectatur  applies  here,  as  in  other 
actions  for  damages.  It  has  accordingly  been  held, 
in  a  case  where  the  plaintiff  was  injured  through 
the  falling  of  defendant's  pole  which  was  broken  by 

1  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.),  15  Atl.  Rep.  624;  Wolfe  v. 
Erie  Tel.,  etc.  Co.,  33  Fed.  Rep.  320;  Western  Union  Tel.  Co.  v.  Eyser, 
2  Col.  141;  Thomas  v.  Western  Union  Tel.  Co.,  100  Mass.  156;  Wilson 
v.  Great  Southern  Tel.  Co.,  41  La.  An.  1041;  s.  c,  6  South.  Rep.  781; 
Dickey  v.  Maine  Tel.  Co.,  46  Me.  4S3. 

2  Wolfe  v.  Erie  Tel.,  etc.  Co.,  33  Fed.  Rep.  320. 


IN    USE    OF    STREETS,    HIGHWAYS,    ETC.  109 

the  collision  of  a  runaway  team  of  horses,  that,  as 
the  pole  stood  at  such  a  distance  from  the  traveled 
portion  of  the  highway  as  to  be  safe  from  collisions 
with  teams  under  ordinary  circumstances,  there 
could  be  no  recovery,  although  the  pole  was  not 
strong  enough  to  withstand  such  a  collision:  the 
accident  of  the  running  away  of  the  horses,  and  not 
the  weakness  of  the  pole,  was  deemed  the  proximate 
cause  of  the  damage.1 

§  73.  Contributory  Negligence  of  the  Traveler. — 
The  rule  stated  in  the  preceding  section  operates  to 
exonerate  the  company  where  the  proximate  cause 
of  the  accident  was  the  negligence  of  the  traveler, 
and  not  that  of  the  company  in  the  erection  of  its 
poles  or  wires.  The  well-known  general  rule  here 
is — subject  to  some  exceptions  in  some  American 
jurisdictions — that  if  the  negligence  of  the  traveler 
materially  contributes  to  the  injury  he  cannot  re- 
cover, since  the  law  has  no  scales  by  which  it  can 
separate  and  weigh  the  relative  fault  of  the  parties 
and  say  how  much  of  the  damage  was  due  to  the 
fault  of  each.  The  rule,  in  its  application  to  inju- 
ries sustained  by  travelers  through  coming  in  con- 
tact with  obstructions  in  the  highway  is — stated  in 
a  leading  case  in  its  simplest  form — that  the  trav- 
eler cannot  recover  damages  if  he  could  have 
avoided  the  accident  by  the  exercise  of  reasonable 
care  on  his  part.2  One  who  recklessly  thrusts  him- 
self upon  a  known  danger  is  guilty  of  contributory 
negligence.3     So,   one  who    deliberately  drives  his 

1  Allen  v.  Atlantic,  etc.  Tel.  Co.,  21  Hun  (N.  Y.),  22. 

2  Butterfield  v.  Forrester,  11  East,  60;  s.  c,  2  Tbomp.  Neg.  1104.  For 
a  discussion  of  the  doctrine  of  contributory  negligence  in  its  applica- 
tion to  injuries  upon  the  highway,  see  2  Thomp.  Neg.  1197,  et  seq. 

3  Butterfield  v.  Forrester,  supra. 


110      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

horse  into  a  place  of  danger  near  an  electric  railroad 
track,  with  a  full  knowledge  of  the  situation  and 
danger,  for  the  express  purpose  of  testing  the  horse 
as  to  his  disposition  to  become  frightened,  is  guilty 
of  such  contributory  negligence  as  will  prevent  a 
recovery,  where  the  horse  becomes  frightened  at  a 
train  and  runs  away.'  The  true  inquiry  here  is 
whether,  under  all  the  circumstances  of  the  case, 
the  plaintiff  or  other  person  injured  exercised  ordi- 
nary or  reasonable  care — the  two  expressions  being 
in  a  legal  sense  synonymous.  Where  the  court 
charged  the  jury  that  if  the  position  of  the  person 
killed  by  coming  into  collision  with  the  wires  of  the 
defendant,  was  dangerous,  owing  to  defendant's 
negligence  alone,  and  he  exercised  the  care  of  a 
prudent  man,  that  was  all  that  was  required;  that 
where  one  in  such  position,  not  having  time  to 
judge  the  best  way  of  doing,  selects  a  method  not 
the  best,  the  law  would  not  impute  negligence  as 
readily  as  if  he  had  time  to  choose;  that  another 
might  have  done  differently,  but  the  only  question 
was  what  did  care  and  prudence  require,  and  did 
he  do  it, — it  was  held  that  the  instruction  was  cor- 
rect.2 It  has  been  held  that  the  failure  of  a  traveler 
to  notice  in  the  daytime  an  electric  light  wire  on 
the  sidewalk,  over  which  she  stumbled  and  fell,  is 

1  Cornell  v.  Detroit,  etc.  R.  Co.  (Mich.),  46  N.  W.  Rep.  701. 

2  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.),  15  Atl.  Rep.  624.  One  can 
hardly  understand  the  conception  of  the  late  territorial  court  of  Colo- 
rado that  the  plaintiff's  right  to  recover  is  not  affected  hy  his  having 
contributed  to  his  injury,  unless  he  was  in  fault  in  so  doing  (Western 
Union  Tel.  Co.  v.  Eyser,  2  Col.  T.  141)  ;  since  contributory  negligence 
is  in  itself  fault.  In  a  charge  to  the  jury  on  the  subject  of  the  right  of 
recovery  for  an  injury  sustained  through  the  improper  location  of  tele- 
phone poles  in  the  public  street  with  especial  reference  to  the  contribu- 
tory negligence  of  the  driver  of  the  vehicle,  see  Sheffield  v.  Central 
Union  Tel.  Co.,  36  Fed.  Rep.  164. 


IN    USE    OF    STREETS,    HIGHWAYS,    ETC.  Ill 

not  contributory  negligence  as  a  matter  of  law,  and 
will  not  prevent  her  from  recovering  for  the  injuries 
from  the  company.  The  court,  speaking  through 
Mr.  Justice  Berkshire,  say:  "A  small  wire  lying 
along  a  sidewalk  might  very  reasonably  be  over- 
looked by  a  passer-by  who  has  no  notice  thereof,  and 
the  fact  that  it  is  overlooked  does  not  necessarily 
indicate  negligence.  We  cannot  hold,  as  a  question 
of  law,  that  a  person  may  not  pass  along  a  sidewalk 
cautiously  and  fail  to  observe  a  small  wire  lying 
along  or  across  it;  and  then  we  can  imagine  many 
circumstances  whereby  the  attention  of  the  pedes- 
trian might  be  attracted  from  the  sidewalk  which 
would  be  sufficient  to  divert  the  attention  of  any 
reasonably  prudent  person."  * 

§  74.  Contributory  Negligence  of  Driver  not  Im- 
putable to  tbe  Passenger. — The  doctrine  obtained 
for  a  time  in  England,  and  to  some  extent  in  this 
country,  under  which,  where  one  person  having, 
roughly  speaking,  the  custody  of  the  person  of 
another,  was  guilty  of  contributory  negligence 
whereby  that  other  was  injured,  the  negligence  of 
the  custodian  was  imputed  to  the  person  injured, 
and  he  was  debarred  from  recovering  damages,  not- 
withstanding the  negligence  of  the  defendant;2  but 
this  doctrine  never  met  with  full  judicial  and  pro- 
fessional  approval,   and  has  now  been   thoroughly 

1  Brush  Electric  Lighting  Co.  v.  Kelley  (Ind.),  9  Rail.  &  Corp.  L.  J. 
135;  s.  C,  25  N.  E.  Rep.  812.  The  court  cite:  Barry  v.  Terkildsen,  72 
Cal.  254;  Hussey  v.  Ryan,  64  Md.  426;  Jennings  v.  Van  Schaick,  108  X. 
Y.  530;  Kelly  v.  Blackstone,  147  Mass.  448;  NoTblesville,  etc.  Gas  Co.  v. 
Lehr,  124  Ind.  70.  The  conclusion  of  the  court  is  also  supported  by 
Woods  v.  Boston,  121  Mass.  337.    See  also  2  Thoinp.  Neg.  1197. 

"  Thorogood  v.  Bryan,  8  C.  B.  114,  129;  s.  c,  Thoinp.  Carr.  273;  fol- 
lowed in  Armstrong  v.  Lancashire,  etc.  11.  Co.,  L.  R.  10  Exch.  47. 


112     NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

overthrown,  both  in  England  and  America.1  Ac- 
cordingly, it  has  been  held,  in  an  action  where  a 
married  woman  was  injured  by  the  fact  that  the 
buggy  in  which  she  was  riding  and  in  which  her 
husband  was  driving  came  in  contact  with  one  of 
the  defendant's  telegraph  poles  planted  in  the  street, 
that  if  the  injury  was  occasioned  solely  by  the 
driver's  negligence,  the  defendant  was  not  liable; 
but  that  if  the  driver's  negligence  only  contributed 
to  the  injury,  his  negligence  could  not  be  imputed 
to  plaintiff,  so  as  to  defeat  her  action,  where  defend- 
ant's negligence  also  directly  contributed  to  it.2 

§  75.  Poles  Erected  in  Part  of  the  Street  Pro- 
hibited to  Travel. — The  Supreme  Court  of  Louisiana 
has  recently  held  that  the  erection  of  wires  by  a 
telephone  and  telegraph  company  along  neutral 
ground  in  a  street,  in  such  a  manner  as  to  endanger 
occupants  of  vehicles,  is  negligence,  although  a  city 
ordinance  prohibits  the  use  of  such  ground  for  vehi-' 
cles.3  But  this  decision  seems  to  be  unsound.  The 
careless  doing  of  an  act  which  is  forbidden  by  a 
valid  statute  or  municipal  ordinance  is  negligence 
per  se;4,  a  traveler  is,  therefore,  in  such  a  case  guilty 

1  Bennett  v.  New  Jersey,  etc.  R.  Co.,  36  N.  J.  L.  225;  Hay  v.  LeNeve, 
2  Shaw  Sc.  App.  405;  The  Milam,  1  Lush.  388,  403;  Waite  v.  North- 
eastern R.  Co.,  El.  Bl.  &  El.  728;  Greenland  v.  Chaplin,  5  Exch.  243; 
Little  v.  Hackett,  116  U.  S.  366;  New  York,  etc.  R.  Co.  v.  Steinbrenner, 
47  N.  J.  L.  161 ;  Chapman  v.  New  Haven  R.  Co.,  19  N.  Y.  341 ;  Dyer  v. 
Erie  R.  Co.,  71  N.  Y.  228 ;  Transfer  Co.  v.  Kelly,  36  Ohio  St.  86 ;  Wabash, 
etc.  R.  Co.  v.  Shacklet,  105111.  364;  Danville,  etc.  Turnp.  Co.  v.  Stewart, 
2  Met.  (Ky.)  119;  Louisville,  etc.  R.  Co.  v.  Case,  9  Bush  (Ky.),  728; 
Cuddy  v.  Horn,  46  Mich.  596. 

2  Sheffield  v.  Central  Union  Tel.  Co.,  36  Fed.  Rep.  164. 

3  Wilson  v.  Great  Southern  Tel.,  etc.  Co.,  41  La.  An.  1041;  s.  c,  6 
South.  Rep.  7S1. 

4  Worster  v.  Proprietors,  16  Pick.  (Mass.)  541;  Heard  v.  Hall,  Id.  457; 
Karle  v.  Kansas  City,  etc.  R.  Co.,  55  Mo.  476;  Correll  v.  Burlington,  etc. 
R.  Co.,  38  Iowa,  120;  Jetter  v.  New  York,  etc.  R.  Co.,  2  Keyes  (N.  Y.), 
154. 


USE    OF    STREETS,  HIGHWAYS,  ETC.  113 

of  negligence  as  matter  of  law.  It  is  not  perceived 
upon  what  ground  he  can  properly  make  his  own 
negligence,  or  possibly  his  own  wilful  fault  in  driv- 
ing where  the  law  prohibits  him  from  driving,  the 
ground  of  an  action  for  damages. 

§  76.  Injuries  froni  Improper  Location  of  Poles. 
— It  has  been  held  under  the  statutes  of  Ohio,  but 
the  principle  is  no  doubt  of  general  application,  that 
a  telephone  company  must  exercise  reasonable  care 
in  the  location  of  its  poles  so  as  not  to  incommode 
public  travel,  but  need  not  so  locate  them  as  to  pro- 
vide against  all  possible  injuries  under  extraordi- 
nary circumstances.1  Nor  can  such  a  company 
justify,  under  a  license  from  the  city,  the  location 
of  a  pole  in  such  a  place  in  the  street,  as  makes  it 
dangerous  to  public  travel;  since,  as  already  ex- 
plained, the  city,  by  granting  such  a  license,  makes 
itself  a  wrong-doer;2  and  upon  the  question  whether 
the  pole  was  in  fact  so  located  as  to  be  dangerous 
to  public  travel,  the  license  from  the  city  will  not 
be  conclusive,  but  the  question  will  be  submitted 
to  a  jury,  provided  there  is  evidence  from  which 
the  jury  could  properly  draw  the  inference  that  it 
was  so  located.3  It  has  been  held  that  a  tele- 
phone company  is  not  liable  for  personal  injuries 
resulting  from  a  collision  of  a  traveler  with  a  tele- 
phone pole,  in  consequence  of  his  horse  becoming 
frightened  and  unmanageable,  where  the  pole  which 
was  set  within  the  limits  of  the  highway,  could  not 
have  been  placed  nearer  the  fence  without  the 
cross-arms  encroaching  upon  private  propert}r,  and 
was  set  with  due  care  and  in  such  a  position  as  not 

1  Sheffield  v.  Central  Union  Tel.  Co.,  36  Fed.  Rep.  164. 

2  Ante,  §  29. 

3  Wolfe  v.  Erie  Tel.,  etc.  Co.,  33  Fed.  Rep.  320. 

(8) 


114      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

to  obstruct  or  incommode  the  public  use  of  the 
highway.1  In  this  case  the  complaint  alleged  that 
the  plaintiff,  with  a  companion,  was  driving  along 
a  highway  which  had  three  traveled  tracks;  that  the 
team  was  traveling  on  the  north  track,  which  was 
eight  feet  from  the  fence;  that  between  this  track  and 
the  fence,  and  about  four  or  six  feet  from  the  fence, 
were  defendant's  telephone  poles,  about  eleven  rods 
apart ;  that  the  highway  was  almost  perfectly  level ; 
that,  Avhile  plaintiff  was  attempting  to  alight  from 
the  buggy,  the  horses  became  frightened  by  an  ap- 
proaching team,  ran  into  a  telephone  pole,  threw 
him  out,  and  caused  the  injury  complained  of.  It 
was  held,  on  demurrer,  that  the  complaint  did  not 
state  a  cause  of  action.2 

§  77.      Collision  in  Consequence  of  Horse  Running- 

Away. — It  has  been  held  that  if  a  telephone  pole 
is  placed  in  the  roadway  of  a  public  street,  or 
so  near  thereto  as  to  be  dangerous  to  ordinary 
travel,  a  traveler  who  comes  into  collision  with 
such  obstruction  in  consequence  of  his  horse 
taking  fright  and  running  away,  provided  he  uses 
reasonable  efforts  under  the  circumstances  to  man- 
age and  subdue  the  horse,  and  does  not  leave  the 
box  before  the  collision  occurs,  can  recover  dam- 
ages for  the  injury.3  But  this  decision  seems  to  be 
unsound  in  principle  and  opposed  to  good  au- 
thority. In  such  a  case  the  sound  conclusion  seems 
to  be  that  it  is  the  running  away  of  the  horse,  and 
not  the  location  of  the  prde  that  is  the  proximate 
cause  of  the  damage.4 

i  Roberts  v.  Wisconsin  Tel.  Co.  (Wis.),  4G  X.  W.  Rep.  800. 

2  Ibid. 

3, Wolfe  v.  Erie  Tel.,  etc.  Co..  33  Fed.  Rep.  320. 

4  Davis  v.  Dudley,  4  Alien  (Mass.),  557;   Moulton  v.  Sanford,51  Me. 


USE    OF    STREETS,   HIGHWAYS,   ETC.  115 

§   78.      Injuries    from    Overhanging     Wires. —  The 

fact  that  a  telegraph  line  crossing  a  highway  is 
allowed  to  swing  down  so  low  as  to  obstruct  ordi- 
nary travel,  is  some  evidence  of  negligence  on  the 
part  of  the  telegraph  company,  and,  in  the  absence 
of  anything  to  explain  it,  will  warrant  a  verdict 
against  them  for  damages  for  injuries  sustained  by 
one,  who,  using  due  care,  is  thrown  from  his  vehicle 
by  means  of  the  wire.1  Perhaps  it  is  but  another 
way  of  stating  the  same  principle  to  say  that,  in 
an  action  for  the  death  of  one  thrown  from  his  car- 
riage by  a  telephone  wire  stretched  across  the  road, 
if  the  injuries  are  the  natural  consequence  of  de- 
fendant's negligence,  or  that  of  its  servants,  such  a 
consequence  as  might  have  been  foreseen  by  the 
servant  as  likely  to  flow  from  his  carelessness,  there 
being  no  contributory  negligence,  the  defendant  is 
liable.2  It  is  not  necessary,  in  order  to  establish 
the  negligence  of  the  defendant  in  such  a  case,  to 
prove  that  the  defendant  had  been  notified  that  its 
wire  obstructed  the  highway  and  that  it  refused  to 
remove  it."  The  reason  is  that  a  party  who,  for  his 
own  gain,  occupies  the  public  street  with  something 
which,  unless  properly  cared  for,  may  become  dan- 
gerous to  public  travel,  is  under  an  affirmative  duty 
of  care  and  inspection,  and  cannot  justify  waiting 
until  the  city  authorities  or  some  one  else  notifies 
him  that  it  has  become  dangerous.4     It  is  the  ob- 

127.  As  to  injuries  which  are  the  combined  result  of  negligeuce  ami 
accident,  and  especially  in  the  case  of  injuries  upon  highways,  see  2 
Thomp.  Neg.  1085. 

1  Thomas  v.  Western  Union  Tel.  Co.,  100  Mass.  156;  Dickey  v.  Maine 
Tel.  Co.,  46  Me.  483. 

2  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.),  15  Atl.  Rep.  624. 

*  Ibid. 

*  See  some  of  the  cases  collected  in  1  Thomp.  Neg.   :'.!:;. 


116      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

vious  duty  of  any  person  or  corporation  obstructing 
a  public  street  for  private  gain  to  keep  the  ob- 
struction guarded,  lighted,  or  otherwise  to  keep  the 
public  notified  of  it.1  In  line,  with  this  principle  it 
has  been  justly  held  that  if  a  telegraph  company, 
engaged  in  constructing  its  line  through  a  public 
and  frequented  street  of  a  city,  allows  its  wire  to 
remain  suspended  across  the  street  in  a  manner 
which  obstructs  travel,  without  guards,  flags,  or 
other  notice  to  the  public  of  the  obstruction,  it  is 
guilty  of  gross  negligence.2  Where  a  wire  of  a  tel- 
ephone company  fell  by  reason  of  the  company's 
negligence,  upon  the  trolley  wire  of  an  electric  rail- 
way company,  over  which  there  was  no  guard  wire, 
both  companies  were  held  liable  for  the  value  of  a 
horse  killed  by  coming  in  contact  with  the  fallen 
telephone  wrire.3 

§  79.  Injuries  from  Guy  Wires. — Although  the 
company  may  have  the  right  to  occupy  the  street 
with  its  poles,  yet  if  it  secures  them  by  guy  wires 
so  as  to  endanger  public  travel,  it  must,  under  the 
principles  and  within  the  limits  heretofore  stated, 
pay  any  resulting  damages/       9 

§  80.  Poles  Blowu  Down  by  Storms. — If  such  a 
company  does  not  secure  its  posts  so  that  such 
winds  as  are  liable  to  occur  in  the  particular  climate 
will  not  be  likely  to  blow  them  down,  it  may  become 
liable  to  one  who  sustains  injury  from  such  a  catas- 
trophe. Judicial  opinion  thus,  to  some  extent,  places 
the  company  betwixt  the  devil  and  the  deep  sea; 

1  Manley  v.  St.  Helens  Canal  Co.,  2  Hurl.  &  N.  S40.     And  see  Wig- 
gins v.  Boddington,  3  Car.  &  P.  544. 

2  Western  Union  Tel.  Co.  v.  Eyser,  2  Col.  T.  141. 

s  United  Electric  R.  Co.  v.  Shelton  (Term.),  14  S.  W.  Rep.  863. 
*  Wilson  v.  Great  Southern  Tel.,  etc.  Co.,  41  La.  An.  1041;  s.  c,  6 
South.  Rep.  781. 


USE    OF    STREETS,   HIGHWAYS,   ETC.  117 

but  their  lot  is  somewhat  mitigated  by  the  recollec- 
tion that  they  are  not  liable  for  damages  sustained 
by  failing  to  erect  their  poles  with  such  strength  as 
to  withstand  those  great  storms  which,  though  lia- 
ble to  happen  in  any  American  climate,  are  placed 
by  the  judges  in  the  category  of  "acts  of  God;" 
which  is  another  way  of  saying  that  they  are  only 
bound  to  reasonable  care  in  the  construction  and 
maintenance  of  their  lines.1 

§  81.  Right  of  Contribution  by  Municipal  Corpo- 
ration Against  Electric  Light  Company. — If  a  private 
person  digs  a  hole  or  puts  an  obstruction  in  the 
street  of  a  city  whereby  a  traveler  is  injured,  he 
may  have  an  action  for  his  damages,  either  against 
the  author  of  the  nuisance  or  against  the  city  for 
permitting  it  to  continue.  The  one  is  liable  for  his 
misfeasance;  the  other  for  its  non-feasance  in  not 
discharging  its  public  duty  of  keeping  its  streets  in 
repair  and  free  from  nuisances  dangerous  to  public 
travel.  In  these  cases  the  author  of  the  nuisance 
and  the  city  are  not  in  pari  delicto — in  equal  fault — 
unless  the  city  has  authorized  the  author  of  the 
nuisance  to  commit  it:  the  one  is  an  affirmative 
tort-feasor;  the  fault  of  the  other  is  negative  and 
inadvertent.  In  such  cases  the  city,  if  compelled 
to  pay  damages  in  an  action  by  the  person  injured, 
may  have  an  action  for  contribution  against  the 
author  of  the  nuisance.2  Not  so  where  the  city 
itself  has  authorized  the  nuisance;  for  then  they  are 
in  pari  delicto.  When,  therefore,  a  pole  was  erected 
by  an  electric  light  company  in  such  a  situation  as 
to  be  a  nuisance,  but  in  a  location  approved  by  the 


»  Ward  v.  Atlantic,  etc.  Tel.  Co.,  71  N.  Y.  81. 
2  Ante,  p.  38,  note  3.    See  2  Thomp.  Neg.  701. 


118      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

village  authorities,  it  was  held,  in  an  action  against 
the  village  and  the  successor  of  the  electric  light 
company,  that  the  two  were  in  pari  delicto,  and 
that  the  village  was  not  entitled  to  contribution 
against  its  co-tortfeasor.1 

§  82.  Obstructing  Navigation.  —  Under  Act  of 
Congress  July  24,  1866, 2  authorizing  telegraph  com- 
panies to  construct  telegraph  lines  over,  under,  or 
across  navigable  streams,  in  such  manner  as  not  to 
obstruct  navigation,  a  telegraph  company  whose  sub- 
marine cables  are  laid  in  the  soft  mud  or  silt  at  the 
bottom  of  a  navigable  river,  so  as  to  interfere  with  the 
movements  of  vessels  which  are  accustomed  to  plow 
through  the  mud  in  such  localities,  thereby  ob- 
structs navigation.3 

§  83.  Vessels  Injuring  Submarine  Cables. —  The 
owners  of  vessels  which  negligently  injure  sub- 
marine cables,  although  beyond  the  marine  league, 
will  be  adjudged  to  pay  damages  therefor  by  the 
proper  English  tribunal.  In  one  such  case  the 
plaintiffs  were  the  owners  of  a  telegraphic  cable 
lying  at  the  bottom  of  the  sea  between  England 
and  France.  The  defendants  were  aliens,  and  their 
ships,  while  sailing  upon  the  high  seas  more  than 
three  miles  from  England's  coast,  lowered  an  anchor, 
and  injured  the  cable.  It  was  held  that  the  court 
would  presume  that  the  masters  of  ships  were  aware 
of  the  existence  and  situation  of  submarine  cables, 
and  that  a  duty  was  thereby  cast  upon  all  such 
masters  of  ships  to  manage  their  vessels  so  carefully 
and  skillfully  as  to  avoid  injuring  these  cables,  if 

1  Geneva  v.  Brush  Electric  Co.,  50  Hun  (N.  Y.),  581;  s.  c,  20  N.  Y. 
St.  Rep.  424;  s.  c,  3  N.  Y.  Supp.  595. 

2  U.  S.  Rev.  Stat.,  §  5263. 

The  City  of  Richmond,  43  Fed.  Rep.  S5. 


USE    OF    STREETS,   HIGHWAYS,   ETC.  119 

possible,  in  the  exercise  of  reasonable  precaution.1 
In  another  such  case  a  ship's  anchor  got  entangled 
with  an  electric  cable,  and  the  cable  was  cut  by 
order  of  the  master.  It  was  held  that,  under  the 
circumstances,  the  master  was  guilty  of  a  want  of 
nautical  skill,  and  that  the  admiralty  court  had  juris- 
diction to  entertain  a  suit  against  the  ship;  and 
the  ship  was  condemned  to  pay  damages  and  costs.2 
§  84.  Electric  Trains  Frightening-  Horses.  — 
From  a  case  depending  on  a  collection  of  facts,  the 
conclusion  may  be  extracted  that  it  is  not  negli- 
gence, on  the  part  of  the  servants  of  an  electric  rail- 
road company,  not  immediately  to  stop  the  train  on 
seeing  a  frightened  horse  with  its  driver  at  its  head 
near  a  crossing  350  or  400  feet  distant,  where  the 
speed  of  the  train  is  decreased,  and  there  is  nothing 
to  indicate  to  the  employees  that  there  is  any  par- 
ticular danger.  It  appeared  that  plaintiff,  while 
driving  along  the  avenue  on  which  was  the  car  line, 
saw  a  train  coming  around  a  bend  about  350  or  400 
feet  away;  that  he  motioned  for  it  to  stop,  and  got 
out,  and  took  his  horse  by  the  head.  The  cars  were 
then  about  half  way  to  him,  and  slowing  up;  and, 
the  horse  exhibiting  signs  of  fear,  he  led  it  across 
the  sidewalk  into  an  open  field.  The  horse  dragged 
him  about  the  field,  and  finally  turned,  and  dragged 
him  into  the  street,  where  he  fell,  and  was  injured, 
and  the  horse  ran  away.  The  cars  were  running  at 
ordinary  speed,  the  gong  was  sounded  as  they  ap- 

1  Submarine  Telegraphic  Company  v.  Dickson,  15  C.  B.  (N.  S.)  759;  s. 
c,  10  Jur.  (N.  S.)L211;  s.  c,  33  L.  J.  (C.  P.)  139;  s.  c,  12  W.  R.  384; 
s.  c.,10L.T.  (N.  S.)  32. 

2  The  Clara  Killam,  39  L.  J.  (Adm.)  50;  s.  C,  L.  R.  3  Adm.  161;  S. 
C,  19  W.  R.  25;  B.C.,  23  L.  T.  (N.  S.)  27.  British  statute  punishing 
malicious  injuries  to  telegraph  batteries,  machinery  wires,  cables, 
posts,  etc. :     24  and  25  Vict.,  ch.  97,  §§  37,  38. 


120     NEGLIGENT   INJURIES    BY    THESE    COMPANIES. 

proached  the  bend,  and  they  stopped  before  reach- 
ing plaintiff.  The  court,  speaking  through  Mr. 
Justice  Grant,  said:  "Defendant's  servants  in 
charge  of  the  cars  were  not  under  obligations  to  im- 
mediately stop  them.  They  had  fulfilled  their  duty 
by  commencing  to  run  more  slowly.  If  such  com- 
panies were  obliged  to  stop  their  cars  at  that  dis- 
tance upon  seeing  a  horse,  with  his  owner  holding 
him  by  the  head,  in  apprehension  of  fright,  or  in 
actual  fright,  they  could  not  meet  the  demands  or 
the  requirements  of  public  travel.  The  defendant 
had  an  equal  right  to  the  use  of  the  street  with  its 
cars  as  plaintiff  with  his  horse.  Each  was  bound 
to  exercise  due  care  and  caution;  and  this  the  de- 
fendant did.  It  was  evidently  the  sight  of  the  mov- 
ing cars,  not  their  speed,  that  frightened  the  horse. 
They  were  from  150  to  200  feet  distant  when  plaint- 
iff and  his  horse  went  over  the  sidewalk  into  the 
common.  It  is  difficult  to  see  how  the  defendant's 
servants  were  under  any  legal  obligation  to  act 
differently  from  what  the}7  did."  ' 

§  85.  Certain  Evidential  Matters. — It  has  been 
held  that,  in  an  action  for  damages  sustained  by 
being  thrown  over  a  telephone  wire,  it  is  competent 
to  show  that  defendant,  shortly  after  the  accident, 
changed  its  line  at  the  spot,  making  it  higher.2  It 
has  been  also  held  competent  in  such  a  case  to  give 
evidence  as  to  the  height  of  the  wire  on  the  Sunday 
before  the  accident.3  On  the  other  hand,  the  fact 
that  others,  with  loaded  wagons  equally  high,  passed 
under  the  wire  without  injury,  did  not,  in  the  opin- 
ion of  the  court,  raise  a  presumption  of  negligence 

1  Cornell  v.  Detroit,  etc.  R.  Co.  (Mich.),  46  N.  W.  Rep.  791. 

2  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.),  15  Atl.  Rep.  624. 

3  Ibid. 


USE    OF    STREETS,   HIGHWAYS,   ETC.  121 

on  the  part  of  deceased.1  On  the  trial  of  an  action 
against  a  telegraph  company,  for  negligence  in  per- 
mitting telegraph  poles  to  fall  and  suspend  the  wires 
across  a  highway,  where  a  question  is  raised  as  to 
the  soundness  of  the  poles,  it  js  error  to  admit  evi- 
dence of  the  condition  of  other  poles  forty  or  sixty 
rods  away,  without  any  evidence  to  show  that  they 
were  of  the  same  kind,  put  up  at  the  same  time  and 
equally  exposed.2 

1  Pennsylvania  Tel.  Co.  v.  Varnau  (Pa.),  15  Atl.  Rep.  624. 

2  Western  Union  Tel.  Co.  v.  Levi,  47  Ind.  552. 


122      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 


Article    III.— INJURIES  TO   THEIR    OWN   EMPLOYEES. 

Section. 
S9.    Injuries  to  the  Company's  Servants. 

90.  Servant  Injured  through  Patent  Defect  not  Obviously  Dangerous. 

91.  Injuries  through  the  Contributory  Negligence  of  the  Servant. 

92.  Injuries    to    Workmen    through    Negligently   Turning  on    the 

Current. 

93.  Injuries  to  Workmen  by  Reason  of  "Live"  Wires  Sagging  upon 

"Dead"  Wires. 

94.  Averring  One  Kind  of  Negligence  and  Recovering  on  Another. 

95.  Breaking  of  Elevator  of  Electric  Light  Tower. 

§    89.      Injuries     to      the     Company's      Servants. — 

Whatever  may  be  the  principle  applicable  in  case  of 
injuries  by  such  companies  to  strangers,  it  is  clear 
that  where  the  injury  is  to  one  of  their  own  servants, 
they  are  liable,  if  at  all,  on  the  principle  of  negli- 
gence, and  not  then  if  the  servant  has  been  guilty 
of  negligence  materially  contributing  to  the  injury. 
The  principles  which  must  determine  the  question 
of  such  liability  are  laid  down  in  the  leading  treat- 
ises on  the  law  of  master  and  servant  and  the  law 
of  negligence.  These  principles  are:  1.  That  a 
servant,  on  entering  into  the  service  of  his  master, 
impliedly  takes  upon  himself  the  risks  actually  in- 
cident to  the  business.  These  risks  include  :  a. 
The  risk  of  injury  from  the  negligence  of  fellow- 
servants,  b.  The  risk  of  injury  from  patent 
defects   and  imperfections  in  the   machine^   and 


INJURIES    TO    EMPLOYEES.  123 

appliances  supplied  to  him  for  the  prosecution  of 
his  work.  2.  On  the  other  hand,  the  master  is 
bound  to  exercise  reasonable  or  ordinary  care  in 
the  selection  of  other  servants  who  are  to  work  with 
the  particular  servant,  so  that  they  are  reasonably 
careful  and  skillful  and  otherwise  fit  and  proper. 
3.  He  is  bound  to  exercise  the  like  care  in  the 
selection  and  inspection  of  the  machinery  and  appli- 
ances with  which  the  servant  is  required  to  work.1 
It  may  sometimes,  though  rarely,  happen  that  the 
breakage  of  the  appliance  itself  ma}7  be  evidence  of 
negligence  on  the  part  of  the  master,  on  the  prin- 
ciple res  ipsa  loquitur.  Where  a  lineman  was  put- 
ting up  a  telegraph  wire,  when  both  the  wire  and 
the  cross-arm  broke,  and  the  lineman  was  thrown 
to  the  ground  and  killed,  and  there  was  no  positive 
evidence  that  the  materials  were  carefully  selected 
by  the  company,  and  the  evidence  as  to  their  actual 
soundness  was  conflicting,  it  was  held  that  their 
breaking  was  evidence  of  negligence,  and  a  judg- 
ment against  the  company  was  sustained.2 

§  90.  Servant  Injured  through  Patent  Defect  not 
Obviously  Dangerous. — Patent  defects  in  the  appli- 
ances given  the  servant  with  which  to  work,  not 
obviously  dangerous,  are  placed  by  just  views  of 
the  law  among  the  ordinary  risks  of  the  service 
which  he  impliedly  assumes.  Thus,  an  employee 
of  an  electric  light  company,  of  mature  age  and 
ordinary  mental  capacity,  who  is  injured  by  reason 
of  a  defective  ladder,  one  rail  of  which  was  broken 
off  near  the  top,  both  master  and  servant  knowing 

1  Consult  2  Thomp.  Neg.  969,  et  seq..  and  other  works  on  Negligence, 
and  on  the  law  of  Master  and  Servant. 

2  Clairain  v.  Western  Union  Tel.  Co.,  40  La.  An.  178;  S.  C,  3  South. 
Rep.  625. 


124      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

of  the  defect,  and  neither  regarding  it  as  dangerous, 
cannot  recover  damages  therefor  from  the  company.' 

§  91.  Injuries  through  the  Contributory  Negli- 
gence of  the  Servant. — In  accepting  the  risks  of  a 
highly  dangerous  employment,  the  servant  im- 
pliedly agrees  to  exercise,  for  the  promotion  of  his 
own  safety,  that  degree  of  care  which  is  suggested  by 
the  degree  of  the  danger  ;  and  if  he  is  injured  in  con- 
sequence of  failing  to  exercise  such  care,  he  cannot 
justly  cast  the  liability  upon  the  master.  This  is 
well  illustrated  by  a  recent  case  in  Virginia,  where 
it  appeared  that  deceased,  a  servant  of  an  electric 
light  company,  was  sent  to  look  for  a  break  in  the 
circuit  while  the  current  was  on,  and  took  with  him 
a  defective  shunt-cord;  that  he  discovered  the  break, 
and,  in  attempting  to  turn  on  the  current,  grasped  the 
shunt-cord  at  its  defective  end,  and  at  the  same  time 
put  his  other  hand  on  the  exposed  end  of  the  line 
wire,  whereby  the  current  passed  through  him 
and  killed  him ;  and  that,  had  he  grasped  the  line 
wire,  above  the  exposed  end,  he  would  not  have 
been  injured.  It  was  held  that,  as  the  evidence 
failed  to  show  negligence  on  the  part  of  the  de- 
fendant, unmixed  with  the  contributory  negligence 
of  the  deceased,  the  defendant  was  not  liable.2 

§  92.  Injuries  to  Workmen  through  Negligently 
Turning  on  the  Current. — If  a  workman  employed  by 
an  electric  light  company  is  sent  to  fix  a  lamp  at  an 
hour  in  the  day-time  when  the  current  is  regularly 
turned  off,  and  if  through  negligence,  and  without 
giving  him  warning,  the  current  is  turned  on  at  an 

1  Jenney  Electric,  etc.  Co.  v.  Murphy,  115  Ind.  566;  s.  c,  18  N.  E. 
Rep.  30. 

2  Piedmont  Electric,  etc.  Co.  v.  Patterson,  84  Va.  747;  s.  c,  6  S.  E. 
Rep.  4. 


INJURIES    TO    EMPLOYEES.  125 

earlier  hour  than  usual,  whereby  he  is  injured,  he 
may  recover  damages.1  In  the  case  just  cited,  the 
evidence  showed  that  at  3:30  p.  m.  plaintiff  was 
sent  to  remove  an  electric  lamp  and  connect  the 
wires  with  the  circuit ;  that  the  usual  time  for 
turning  on  the  electric  current  was  4:  30  p.  m.  on 
cloudy  days,  and  4:45  on  clear  days  ;  that  plaintiff 
proceeded  at  a  "good  gait,  pretty  fast;"  that  when 
he  reached  the  lamp  and  began  work,  it  was  barely 
4:  15  p.  m.,  and  the  weather  clear;  and  that  while 
handling  the  wires,  the  current  was  turned  on  and 
he  was  injured.  It  was  held  that  a  nonsuit  was  prop- 
erly refused.2  It  was  also  held  that  evidence  offered 
by  the  plaintiff  was  admissible  to  show  that,  after 
the  injury  to  the  plaintiff  from  the  shock,  the  de- 
fendant posted  notices  at  its  works,  warning  all 
employees  at  work  on  its  lines  and  circuits  to  quit 
such  work  at  4  o'clock,  and  not  to  continue  the 
same  without  notifying  the  officers  at  the  works.3 

§  93.  Injuries  to  Workmen  by  Reason  of  "Live" 
Wires  Sagging:  upon  "Dead "  Wires. — A  jury  may 
infer  negligence  from  the  fact  that  an  electric  light 
company  has  so  strung  its  wires  that  those  of  one 
circuit  cross  those  of  another,  so  that  a  slight  sag- 
ging of  one  would  bring  the  two  in  contact,  and  has 
maintained  one  circuit  as  a  live  one  while  em- 
ployees were  set  to  work  handling  with  bare  hands 
the  wires  of  the  dead  circuit  crossing  the  wires  of 
the  live  circuit.4  In  this  case  the  action  was  by  an 
employee  for  injuries  alleged  to  have  been  received 

1  Colorado  Electric  Co.  v.  Lubbers,  11  Colo.  505;  s.  C,  19  Pac.  Kep. 
479. 

2  Ibid. 

3  Ibid. 

4  Kratz  v.  Brush  Electric  Light  Co.  (Mich.),  46  N.  W.  Rep.  787. 


126      NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

from  an  electric  shock  while  trimming  the  com- 
pany's lamps  on  circuit  No.  11;  it  appeared  that  at 
that  time  the  wires  on  that  circuit  should  have  been 
dead  wires,  that  is,  not  charged  with  electricity. 
At  that  time  the  wires  on  circuit  No.  4  were  live  or 
charged  wires.  The  wires  in  the  two  circuits  ran 
for  some  distance  on  the  same  poles,  and  were  so 
placed  that  wires  in  one  circuit  crossed  those  in  the 
other,  so  that  when  they  sagged  the  wires  of  the 
different  circuits  would  touch  one  another.  It  was 
shown  that  the  contact  of  the  wires  would  wear  off 
the  insulation  ;  that  it  had  worn  off  in  places ;  and 
that  where  live  and  dead  wires  came  in  contact,  at 
points  where  the  insulation  was  worn  off,  the  elec- 
tricity would  be  instantly  conveyed  from  the  live 
to  the  dead  wire  along  the  whole  line.  It  was 
shown  that  the  wires  of  the  two  circuits  were  in 
contact,  on  the  day  of  the  injury,  in  several  places. 
There  was  no  evidence  that  the  current  was  turned 
upon  circuit  No.  11.  It  was  held  that  the  jury  had 
the  right  to  infer  that  the  electricity  was  transferred 
from  some  live  wire  on  circuit  No.  4  to  some  dead 
wire  on  circuit  No.  11,  at  some  of  the  crosses  of 
these  wires,  and  that  it  was  not  necessary  that  they 
should  find  the  particular  point  of  contact  or  the 
particular  wires.1  It  was  also  held  that  there  was 
no  error  in  permitting  the  existence  of  crosses  in 
other  circuits  to  be  shown,  and  the  effect  and  causes 
of  such  crosses,  this  evidence  being  given  to  show 
that  they  were  caused  by  the  same  manner  of 
stringing  the  wires  as  on  circuit  No.  11,  and  that 
the  sagging  of  the   wires  brought  the  wires  in  con- 

1  Kratz  v.  Brush  Electric  Light  Co.  (Mich.),  46  N.  W.  Rep.  7S7. 


INJURIES    TO    EMPLOYEES.  127 

tact,  wearing    off  the    insulation    and  leaving    the 
wires  bare.1 

§  94.  Averring"  One  Kind  of  Negligence  and  Re- 
covering on  Another. — In  actions  for  damages  for 
negligence  the  allegata  and  probata  must  cor- 
respond.2 If  the  servant  avers  negligence  in  general 
terms,  without  specifying  wherein  it  consists,  his 
declaration,  petition,  or  complaint  will  be  good  on 
general  demurrer ;  though  under  some  systems  it 
will  be  subject  to  a  motion  to  make  it  more  definite 
and  certain.  But  where  he  avers  that  the  negli- 
gence of  the  defendant  consisted  in  one  thing,  and 
then  proves  negligence  consisting  in  something  else, 
he  ought  not  to  be  allowed  to  recover.  In  fact  such 
evidence  is  inadmissible  under  the  pleadings,  and 
if  objected  to,  and  nevertheless  admitted,  it  is  error. 
When,  therefore,  in  an  action  by  an  employee  of  an 
electric  light  company  for  damages  sustained  by 
the  plaintiff  through  the  breaking  of  the  cable  of 
an  elevator  by  which  he  was  ascending  one  of  the 
defendant's  towers  to  perform  his  duty  of  trimming 
the  lights,  the  allegation  of  the  complaint  was  that 
the  rope  had  become  rotten  to  the  knowledge  of  the 
defendant,  it  was  held  that  instructions  requested 
by  the  plaintiff  as  to  defendant's  liability  in  case  the 
tower,  elevator,  and  cable  were  properly  constructed, 
were  rightly  refused.3 

§   95.      Breaking    of    Elevator    of     Electric    Light 
Tower. — If  an  employee  of  such  a  company  is  injured 


1  Kratz  v.  Brush  Electric  Light  Co.  (Mich.),  46  N.  W.  Rep.  787. 

2  Schneider  v.  Missouri,  etc.  R.  Co.,  75  Mo.  295;  Gurley  v.  Railway 
Co..  93  Mo.  445;  Harty  v.  Railway  Co.,  95  Mo.  368;  Conway  v.  Railway 
Co.,  24  Mo.  App.  235. 

■"  Weiden  v.  Brush  Electric  Light  Co.,  73  Mich.  268;  s.  C.,41N.W. 
Rep.  269. 


128     NEGLIGENT    INJURIES    BY    THESE    COMPANIES. 

in  consequence  of  an  elevator  of  an  electric  light 
tower  breaking  while  he  is  ascending  it  to  trim  the 
lamps,  it  will  not  be  a  good  defense  that  his  lamps 
were  already  trimmed,  and  that  he  was  consequently 
not  in  the  performance  of  his  dut}r.  If  he  was  pro- 
ceeding in  good  faith  and  without  negligence  in  the 
discharge  of  the  duty  which  he  owed  to  his  master, 
the  latter  will  be  none  the  less  liable  from  the  mere 
fact  that  the  servant  may  have  been  mistaken  as  to 
the  necessity  of  performing  the  particular  duty  on 
the  particular  occasion.1 

1  Weiden  v.  Brush  Electric  Light  Co.,  73  Mich.  268;  s.  c,  41  N.  W. 
Rep.  269. 


LAW    EELATING    TO    TELEPHONE    COMPANIES.         129 


CHAPTER   V. 


THE    LAW   RELATING    TO   TELEPHONES    AND    TELEPHONE 

COMPANIES. 

Section. 

100.  Description  of  a  Telephone. 

101.  Classed  with  Telegraph  Companies. 

102.  The  Telephone  Patents. 

103.  Mistakenly  Pronounced  a  Common  Carrier. 

104.  A  Public  Agency,  and  Subject  to  Public  Regulation. 

105.  No  Defense  that  Corporation  Uses  Agencies  Protected  by  United 

State  Patents. 

106.  Compelled  by  Mandamus  to  Serve  the  Public  Equally. 

107.  Contract  with  Parent  Company  no  Defense. 

108.  Pleading  in  Such  Actions:  Instances  of  a  Responsive  Answer. 

109.  Compelled    to    Furnish  Equal  Facilities   to  Telegraph   Com- 

panies. 

110.  Illustrations. 

111.  A  Contrary  View. 

112.  What  if  Company  have  Lines  Extending  into  Other  States. 

113.  State  Regulation  of  Interstate  Messages  Void. 

114.  State  May  Regulate  Price  of  Service. 

115.  Powers  Under  Revised  Statutes  of  Missouri :    Power  of  State  to 

Regulate  Charges. 

116.  City  of  St.  Louis  no  Power  to  Regulate  Charges  for  Telephone 

Service. 

117.  Decisions  Under  Indiana  Statute. 

118.  Attempted  Evasions  of  Statutory  Penalty. 

119.  Regulation  Against  Use  of  Instrument  by  Rival  Company. 

120.  Regulation  as  to  Improper  Language. 

121.  Telephonic  Communication  as  Evidence. 

122.  Admissibility  of  Conversations  Received  through  a  Public  Tel- 

ephone Operator. 

123.  Where  the  Voice  of  the  Speaker  is  Recognized. 

(9) 


130  LAW    RELATING    TO    TELEPHONE    COMPANIES. 

124.  Admissibility  of  Answers  of    Person  Called  up  Where  Voice 

not  Recognized. 

125.  Reasons  for  Holding  Such  Testimony  Admissible. 

126.  Taxation  of  Telephone  Companies. 

127.  Taxation  of  Stock  of  Parent  Corporation  in  Local  Corporation. 

128.  License  Tax. 

129.  Privileged  Taxation  of  Telegraph  Companies. 

130.  Statutory  Schemes  of  Taxation. 


§  100.  Description  of  a  Telephone. — The  judi- 
cial courts  have  descended  to  the  minuteness  of 
defining  a  telephone.  The  Supreme  Court  of  Indi- 
ana has  pronounced  it  an  "organized  apparatus  or 
combination  cxf  instruments,  usually  in  use  in  trans- 
mitting as  well  as  in  receiving  telephonic  mes- 
sages."1 The  same  court,  in  a  subsequent  case,  has 
pointed  out  that  a  telephone  differs  from  a  telegraph 
in  this,  that  the  telegraph  requires  for  its  operation 
experts,  generally  supplied  by  the  company,  and  that 
telegraph  instruments  in  one  office  would  be  of  no 
use  without  such  experts.  "But  a  telephone  is  en- 
tirely different.  A  telephone,  with  proper  connec- 
tions and  facilities  for  use,  can  be  used  for  any 
purpose;  it  requires  no  experience  to  operate  it."2 

§    101.      Classed    with    Telegraph    Companies. — A 

telephone  being  a  new  species  of  telegraph,  it  has 
been  held  that  a  statute  applicable  to  the  incorpo- 
ration of  telegraph  companies  may  be  deemed  to 
apply  to  telephone  companies,  although  the  latter 
are  not  named.3  Hence,  under  a  statutory  power 
to  construct  and  operate  telegraphs  a  company  may 


1  Central  Union  Telephone  Co.  v.  Bradbury,  106  Ind.  1. 

2  Central  Union  Telephone  Co.  v.  Falley,  118  Ind.  194;  s.  C,  10  Am. 
St.  Rep.  114,  123. 

3  Wisconsin  Telephone  Co.  v.  Oshkosh,  62  Wis.  32;  s.  c,  21  N.  W. 
Rep.  828;  Roberts  v.  Wisconsin  Tel.  Co.  (Wis.),  46  N.  W.  Rep.  800. 


THE  TELEPHONE  PATENTS.  131 

establish  a  telephone  service.1  Telephone  compa- 
nies are  to  be  classed  with  telegraph  companies  in 
determining  the  jurisdiction  of  justices  of  the  peace 
over  actions  against  them,  under  the  Iowa  statutes.2 
§  102.  The  Telephone  Patents. —  A  history  of 
the  invention  of  the  telephone  and  of  the  various 
devices  and  discoveries  which  preceded  the  inven- 
tion of  Alexander  Graham  Bell  is  given  in  the  elab- 
orate decision  of  the  Supreme  Court  of  the  United 
States  in  what  are  known  as  "The  Telephone  Cases, ' ' 
which  consume  an  entire  volume  of  the  official  re- 
ports of  that  court.3  The  decision,  which  upheld 
the  patent  granted  to  Mr.  Bell,  was  made  by  a 
divided  court,  three  justices  dissenting.4  A  sad  in- 
terest attaches  to  the  case  from  the  fact  that  the 
majority  opinion  was  the  last  opinion  delivered  by 
Chief  Justice  Waite.  He  came  upon  the  bench 
sick,  to  deliver  it,  and  died  two  or  three  days  after- 
wards.5 The  decision  of  the  court  turned  chiefly 
on  questions  of  fact,  and  the  case  is  not  under- 
stood as  establishing  any  new  principle  of  law.  It 
is  valuable  chiefly  as  a  history  of  the  invention  of 
the  telephone.  It  is  not  within  the  scope  of  this 
work  to  discuss  any  question  relating  to  the  law  of 
patents  for  inventions ;   but  we  venture  to  reprint 

1  Cumberland  Telephone  Co.  v.  United  Electric  R.  Co.,  42  Fed.  Rep. 
273.    See  also  Attorney-General  v.  Telephone   Co.,  6  Q.  B.  Div.  244. 

2  Franklin  v.  Northwestern  Tel.  Co.,  69  Iowa,  97. 

3  The  Telephone  Case,  126  U.  S.  1 ;  s.  c,  sub.  nom.  Dolbear  v.  Ameri- 
can Bell  Tel.  Co.,  126  U.  S.  147;  s.  c,  8  Sup.  Ct.  Rep.  778. 

4  Those  who  concurred  were :  Mr.  Chief  Justice  Waite,  who  wrote  the 
opinion  of  the  court,  and  Justices  Miller,  Matthews,  Gray,  and  Blatch- 
ford.  Those  who  dissented  were  Justices  Field,  Bradley  and  Harlan. 
Mr.  Justice  Lamar  did  not  sit  in  the  case. 

5  A  memorial  relating  to  the  life  and  judicial  services  of  that  high- 
minded,  courteous  and  excellent  judge  is  published  in  the  same  volume 
as  the  report  of  the  telephone  cases:  126  U.  S.  585,  et  seq. 


132        LAW  RELATING  TO  TELEPHONE  COMPANIES. 

an  abstract  of  this  decision  from  the  pages  of  the 
American  Digest  for  1888,  as  being  seemingly  the 
best  abstract  of  it  which  has  been  made,  and  as 
giving  a  brief  outline  history  of  the  invention  : 

"  In  the  apparatus  made  by  Reis,  of  Germany  (who  was  him- 
self anticipated  by  Bourseul),  in  18G0,  with  its  several  modifica- 
tions, as  described  in  his  prospectus  of  1865,  and  his  catalogue  of 
1866,  and  also  by  Legat,  Van  der  Weyde,  Ferguson,  and  others, 
an  intermittent  or  pulsatory  current  was  employed  ;    the  transmit- 
ter, when  actuated  by  the  sound  waves,  making  and  breaking  the 
circuit  at  each  vibration.    It  was  held  that  the  apparatus  was,  from 
its  very  nature,  unable  to  send  and  receive  articulate  speech,  and 
was  not  in  anticipation  of   letters  No.  174,465,  of  March  7,  1876, 
to  A.  G.  Bell,  for  'improvements  in  telegraphy,'  whose  essential 
elements  are  the  employment  of  the  undulatory,  as  distinguished 
from  the  pulsatory,  current,  to  transmit  and  copy  air  vibrations 
corresponding  exactly  in  amplitude,  rate,  and  form   to  those   of 
the  human  voice,  and  the  apparatus  therefor.     *     *     *     Letters 
No.  186,787,  of   January  30,  1877,  to  A.  G.  Bell,  for   'improve- 
ments in  electric  telephony,'  are   for  the  mechanical  structure  of 
an  electric  telephone,  to  produce  the  electric  action  on  which  let- 
ters No.  174,465,  of  March   7,  1876,  to  said  Bell   'for    improve- 
ments in  electric  telegraphy,'  rests.     The  fifth  claim  of  the  patent 
of   1877  is  as  follows  :     'The  formation,  in  an  electric  telephone, 
such  as  herein  shown  and  described,  of  a  magnet,  with  a  coil  upon 
the  end  or  ends  of   the   magnet  nearest  the   plate.     Held,  the 
claim,  as  a  whole,  being  for  an  electric  telephone,  in  the  construc- 
tion of   which  the  plate  or  diaphragm,  the  permanent  magnet, 
sound  in  the  box,  speaking  tube,  etc.,  or  any  of  them,  are  used, 
and  not  for  the  several  things  in  and  of  themselves,  it  was  not 
anticipated  by  the  magnet  in  Hughes'  printing  telegraph,  as  de- 
scribed in  Schellen's  work.     *     *     *     Nor  is  anticipation  to  be 
found   in   the    patent  of    C.  F.  Varley,   of   London,    England — 
granted,  one,  June  2,  1868,  and  the  other   October  8,  1870 — for 
'improvements  in   electric  telegraphs;'  the  specifications  thereto 
not  indicating  that  the  patentee  had  in  mind  'undulations,'  re- 
sulting 'from  gradual  changes  of   intensity  exactly  analogous  to 
the  changes  in  the  density  of   air  occasioned  by  simple  pendulous 
vibrations,'  which  was  Bell's  discovery,  and  on   which   his  art 
rests ;  and  it  being  apparent  that  Varley' s  only  purpose  was  to 


THE  TELEPHONE  PATENTS.  133 

superpose  on  the  ordinary  single  current  another  which,  by  the 
action  of  the  make  and  break  principle  of  the  telegraph,  would  do 
the  work  he  wanted.  *  *  *  Nor  was  the  Bell  patent  antici- 
pated by  James  W.  McDonough ;  his  application  of  April  10, 
1876,  for  a  patent,  which  was  rightly  refused  on  the  ground  of 
anticipation  by  Reis,  making  a  'circuit-breaker,'  so  adjusted  as 
to  '  break  the  connection  by  the  vibrations  of  the  membrane,'  one 
of  the  elements  of  his  inventions.  *  *  *  The  fact  that  the 
particular  instrument  which  Bell  had,  and  which  he  used  in  his 
experiments,  did  not,  under  the  circumstances  in  which  it  was 
tried,  reproduce  the  spoken  words  so  that  they  could  be  clearly 
understood,  does  not  invalidate  this  patent ;  the  proof  being 
abundant,  and  of  the  most  convincing  character,  that  other  instru- 
ments, carefully  constructed,  and  made  exactly  in  accordance 
with  the  specifications,  did  and  will  operate  successfully,  though 
not  so  perfectly  as  instruments  made  on  the  principle  of  the  micro- 
phone, or  the  variable  resistance  method."1 

§  103.  Mistakenly  Pronounced  a  Common  Car- 
rier.— One  court  has  fallen  into  the  curious  aber- 
ration of  pronouncing  a  telephone  (not  a  telephone 
company)  to  be  a  common  carrier.  "Although  of 
recent  date,"  says  Olds,  J.,  "it  has  become  of  im- 
portant use  in  the  transaction  of  business,  and  there 
is  no  other  invention  or  device  to  supply  its  place. 
While  it  ma}'  not  supply  and  take  the  place  of  the 
telegraph  in  many  instances  and  for  many  purposes, 
yet  in  others  it  far  surpasses  it,  and  is  and  can  be 
put  to  many  uses  for  which  the  telegraph  is  un- 
fitted, and  by  persons  wholly  unable  to  operate  and 
use  the  telegraph.  It  has  been  held  universally  by 
the  courts,  considering  its  use  and  purpose,  to  be 
an  instrument  of  commerce,  and  a  common  carrier 
of  news,  the  same  as  the  telegraph,  and,  by  reason 
of  being  a  common  carrier,  it  is  subject  to  proper 
obligations,  and  to  conduct  its  business  in  a  man- 

1  Dolbear  v.  American  Bell  Telephone  Co.,  12G  U.  S.  147-275;  s.  C,  8 
Sup.  Ct.  Rep.  778. 


134        LAW    RELATING    TO    TELEPHONE    COMPANIES. 

ner  conducive  to  the  public  benefit,  and  to  be  con- 
trolled by  law."  ' 

§  104.  A  Public  Agency  and  Subject  to  Public 
Regulation. — What  the  court-  intend  in  the  forego- 
ing quotation  is  to  lead  up  to  the  conclusion  that 
a  telephone  is  a  public  agency,  and  that  a  telephone 
company  is  consequently  subject  to  public  regula- 
tion. "To  conduct  the  business  of  the  telephone," 
continues  Olds,  J.,  "by  public  telephone  stations, 
and  by  sending  messengers  to  notify  persons  with 
whom  a  patron  of  the  company  desires  to  converse 
in  other  parts  of  the  city,  to  compel  the  person  de- 
siring to  converse  with  others  to  remain  at  the  pub- 
lic telephone  station  until  the  persons  with  whom 
they  desire  to  converse  can  be  notified,  and  so 
arrange  their  business  as  to  leave  it  and  go  to 
another  telephone  station  and  hold  a  conversation, 
renders  the  use  of  the  telephone  almost  worthless. 
It  is  by  reason  of  the  fact  that  business  men  can 
have  them  in  their  offices  and  residences,  and,  with- 
out leaving  their  homes  or  their  places  of  business, 
call  up  another  at  a  great  distance  with  whom  they 
have  important  business,  and  converse  without  the 
loss  of  valuable  time  on  the  part  of  either,  that  the 
telephone  is  particularly  available  as  an  instrument 
of  commerce."  2 

§  105.  No  Defense  that  Corporation  Uses  Agen- 
cies Protected  by  United  States  Patents. — The  mere 
fact  that  a  corporation  conducts  its  business  through 

1  Central  Union  Telephone  Co.  v.  Falley.  US  Ind.  194;  s.  C,  10  Am. 
St.  Eep.  114.  124.     See  post,  §  137,  et  seq. 

2  Central  Union  Telephone  Co.  v.  Falley,  118  Ind.  194;  s.  c,  10  Am. 
St.  Rep.  114.  Learned  discussions  of  this  subject  will  be  found  as  fol- 
lows: By  J.  McCall,  28  Cent.  L.  J.  357;  by  S.  S.  Merrill,  28  Cent.  L. 
J.  40,  n;  by  Robert  Desty,  5  Lawyers'  Rep.  Ann'd,  161,  n. 


MUST    SERVE    THE    PUBLIC    EQUALLY.  135 

inventions  protected  by  patents  granted  by  the 
United  States,  does  not,  where  its  use  is  a  public 
use,,  exonerate  it  from  control  by  State  legisla- 
tion, if  the  public  welfare  demands  it.  Thus,  a 
telephone  company,  using  instruments  for  the  trans- 
mission of  the  sound  of  the  human  voice  which  are 
thus  protected,  have  been  frequently  held  subject  to 
State  regulation.1  The  distinction  has  been  thus 
stated:  "The  right  to  enjoy  a  new  and  useful  in- 
vention may  be  secured  to  the  inventor  and  pro- 
tected by  national  authority  against  all  interference. 
But  the  use  of  tangible  property  which  comes  into 
existence  by  the  application  of  the  discovery  is  not 
beyond  the  control  of  State  legislation,  simply  be- 
cause the  patentee  acquires  a  monopoly  in  his  dis- 
covery. 'The  sole  operation  of  the  statute  is  to 
enable  him  to  prevent  others  from  using  the  prod- 
ucts of  his  labors  without  his  consent;  but  his  own 
right  of  using  is  not  enlarged  or  affected.'  The 
property  of  an  inventor  in  a  patented  machine,  like 
all  other  property,  remains  subject  to  the  paramount 
claims  of  society,  and  the  manner  of  its  use  may  be 
controlled  and  regulated  by  State  laws  when  the 
public  welfare  requires  it."  2 

§  106.      Compelled  by  Mandamus  to  Serve  the  Pub- 
lic Equally. — By  analogy  to  the  rule  respecting  rail- 


1  State  v.  Telephone  Co. ,36  Ohio  St.  296;  s.  c,  38  Am.  Rep.  584;  Ches- 
apeake, etc.  Tel.  Co.  v.  Baltimore,  etc.  Tel.  Co.,  66  Md.  399;  Commer- 
cial Union  Tel.  Co.  v.  New  England  Teleph.,  etc.  Co.,  61  Vt.  241;  S.  c, 
17  Atl.  Rep.  1071 ;  6  Rail.  &  Corp.  L.  J.  147;  5  L.  R.  A.  161 ;  40  Alb.  L. 
J.  186. 

2  Mcllvaine,  C.  J.,  in  State  v.  Telephone  Co.,  supra;  citing  Jordan  v. 
Overseers,  4  Ohio,  295;  Patterson  v.  Kentucky,  97  U.  S.  501.  So  held 
in  Hockett  v.  State,  105  Ind.  250;  s.  C,  55  Am.  Rep.  201. 


136       LAW    RELATING    TO    TELEPHONE    COMPANIES. 

way  companies,1  gas-light  companies,"  and  other 
corporations  charged  with  the  performance  of  public 
duties,3  it  is  held  that  a  telephone  company  can  be 
compelled  by  mandamus  to  serve  the  public  equally. 
That  is  to  say,  a  mandamus  will  be  granted  at  the 
suit  of  A.  to  compel  such  a  company  to  render  him 
its  services  at  the  same  price  as  it  renders  them  to 
B.  under  like  circumstances.4  "Any  person  or  cor- 
poration engaged  in  telephone  business,  operating 
telephone  lines,  furnishing  telephonic  connections, 
facilities,  and  service  to  business  houses,  persons 
and  companies,  and  discriminating  against  any  per- 
son or  company,  can  be  compelled,  by  mandate,  on 
petition  of  such  person  or  company  discriminated 
against,  to  furnish  the  petitioner  a  like  service  as  is 
furnished  to  others."5  Such  a  company  can  be  com- 
pelled by  mandamus  to  place  and  maintain  in  the 
office  of  the  relator  a  telephone  and  transmitter 
such  as  are  usually  furnished  to  other  subscribers 
of  the  company.6 

1  Vincent  v.  Chicago,  etc.  R.  Co.,  49  111.  33;  Chicago,  etc.  R.  Co.  v. 
People,  56  HI.  365;  s.  C,  8  Am.  Rep.  690. 

2  People  v.  Manhattan  Gas-Light  Co.,  45  Barb.  (N.  Y.)  136. 

3  Munn  v.  Illinois,  94  U.  S.  113. 

4  State  v.  Nebraska  Telephone  Co.,  17  Neb.  126;  s.  c,  52  Am.  Rep. 
404;  Central  Union  Telephone  Company  v.  Falley,  118  Ind.  194;  s.  c, 
10  Am.  St.  Rep.  114,  125;  19  N.  E.  Rep.  604;  Louisville  Transfer  Co.  v. 
American  District  Telephone  Co.  (Louisville  Chancery  Court),  38  Am. 
Rep.  588,  note;  Central,  etc.  Tel.  Co.  v.  State,  118  Ind.  598;  Central 
Union  Tel.  Co.  v.  State,  123  Ind.  113;  s.  c,  24  N.  E.  Rep.  215. 

5  Central  Union  Telephone  Co.  v.  Falley,  supra. 

«  State  v.  Nebraska  Telephone  Company,  17  Neb.  126;  s.  c.  52  Am. 
Rep.  404;  State  v.  Telephone  Co.,  36  Ohio  St.  296;  8.  c,  38  Am. 
Rep.  583.  That  such  a  company  is  charged  with  the  obligation  of  re- 
ceiving and  transmitting  messages  with  impartiality  and  in  good  faith, 
see  St.  Louis  v.  Bell  Telephone  Co.,  96  Mo.  623.  That  the  remedy  by 
mandamus  is  an  appropriate  one,  see  State  v.  Hartford,  etc.  R.  Co.,  29 
Conn.  538;  People  v.  Albany,  etc.  R.  Co.,  24  N.  Y.  261,  and  other  cases 
above  cited.  Unjust  discrimination  by  telephone  companies  prohibited  : 
Virginia  Act  Nov.  26, 1888;  Acts  188S,  No.  124,  p.  132. 


MUST    SERVE     THE    PUBLIC    EQUALLY.  137 

§  107.  Contract  With  Parent  Company  no  Defense. 
— Moreover,  where  such  an  obligation  is  imposed 
by  the  statute  law — and  the  rule  would  equally  hold 
in  respect  of  the  same  obligation  as  it  exists  at  com- 
mon law, — a  local  telephone  company,  owning  or 
operating  telephone  lines  or  exchanges  within  the 
State,  cannot  be  exonerated  from  the  performance 
of  the  duty  imposed  by  law,  by  any  conditions  or 
restrictions  imposed  by  contract  with  the  owner  of 
the  instruments  employed  and  of  the  invention  ap- 
plied; and  such  a  telephone  company,  refusing  to 
give  to  a  telegraph  company  the  facilities  afforded  by 
it  to  others,  except  subject  to  restrictive  conditions 
imposed  by  such  a  contract  discriminating  in  favor 
of  another  telegraph  company,  may  be  compelled 
by  mandamus  to  furnish  them.  The  fact  that  a 
telephone  is  a  patented  instrument,  and  protected 
by  letters  patent  granted  to  the  assignor  of  the 
parent  company,  constitutes  no  defense,  since  the 
immunity  conferred  by  the  patent  cannot  operate 
to  exclude  any  portion  of  the  public  from  the  benefit 
of  it.1 

§  108.  Pleading  in  Such  Actions:  Instance  of  a 
Responsive  Answer. — A  petition  for  a  mandamus  to 
compel  respondent  to  furnish  telephone  service  at 
the  usual  charge,  alleged  a  tender  of  the  rent 
charged  to  others  whose  places  of  business  were  as 
far  from  respondent's  office  as  that  of  relator's,  the 
refusal  of  the  tender  and  a  demand  for  higher  rent. 
An  answer  denying  that  the  sum  stated  was  the 
usual    rent    for    the  service  required,  and  averring 

1  Chesapeake,  etc.  Teh-phone  Co.  v.  ftaltimore,  etc.  Tel.  Co.,  6G  Md. 
399;  Commercial  Union  Tel.  Co.  v.  New  England  Telephone,  etc.  Co., 
Gl  Vt.  241;  8.  0.,  17  Atl.  Rep.  1071. 


138       LAW    RELATING    TO    TELEPHONE    COMPANIES. 

that,  for  the  price  usually  charged  to  others  at  a 
like  distance  as  relator's  from  the  central  office, 
respondent  was  willing  and  ready  to  furnish  the  re- 
quired apparatus,  without  ambiguity  or  evasion, 
responded  to  and  denied  the  allegation  of  the  peti- 
tion.1 

§  109.  Compelled  to  Furnish  Equal  Facilities  to 
Telegraph  Companies. — Moreover,  such  a  company 
can  be  compelled  by  mandamus  to  furnish  to  one 
telegraph  company  the  same  facilities  for  the  conduct 
of  its  business  which  it  furnishes  to  another  tele- 
graph company,  and  a  contract  b}^  which  it  under- 
takes to  confer  exclusive  privileges  in  this  respect 
upon  a  certain  telegraph  company,  is  against  public 
policy  and  void.2 

§  110.  illustration. — Thus,  the  American  Bell 
Telephone  Company  entered  into  a  contract  with 
the  Columbus  Telephone  Company,  of  Ohio,  grant- 
ing to  the  latter  the  use  of  its  instruments,  but  pro- 
viding that  the  Western  Union  Telegraph  Company 
should  perform  all  telegraphic  transmissions  in  con- 
nection with  such  use.  The  American  Union  Tele- 
graph Company,  and  the  Baltimore  &  Ohio  Railroad 
Company,  which  was  using  the  telegraph  facilities 
furnished  by  the  American  Union  Company,  were 
allowed  a  mandamus  to  compel  the  Columbus  Tele- 


1  Central  District,  etc.  Telephone  Co.  v.  Com.,  114  Pa.  St.  592;  s.  c,  7 
Atl.  Rep.  926;  6  Cent.  Rep.  151;  11  East.  Rep.  645. 

2  State  v.  Telephone  Co.,  36  Ohio  St.  296;  s.  c,  38  Am.  Rep.  583; 
Chesapeake,  etc.  Telephone  Co.  v.  Baltimore,  etc.  Tel.  Co.,  66  Md. 
399;  s.  c,  23  Reporter,  469;  7  Atl.  Rep.  809;  6  Cent.  Rep.  472;  9  East. 
Rep.  717;  35  Alb.  L.  J.  271;  Commercial  Union  Tel.  Co.  v.  New 
England  Telephone,  etc.  Co.,  61  Vt.  241;  s.  c,  6  Rail.  &  Corp.  L.  J. 
147;  5  L.  R.A.  161;  40  Alb.  L.  J.  186;  17  Atl.  Rep.  1071.  So  held  by 
Judge  Thayer  of  the  St.  Louis  Circuit  Court  in  State  ex  rel.  v.  Bell 
Telephone  Co.,  44  Am.  Rep.  241.   note. 


MUST    SERVE    THE    PUBLIC    EQUALLY.  139 

phone  Company  to  furnish  and  put  up  a  telephone 
for  their  accommodation  and  use.1 

§  111.  A  Contrary  view. — A  contrary  view  has 
obtained  in  Connecticut,  under  substantially  the 
same  state  of  facts  as  those  existing  in  the  cases  last 
cited.  The  Bell  Telephone  Company,  a  corporation 
situated  in  Massachusetts,  and  the  owner  of  several 
patents  for  transmitting  the  sounds  of  the  human 
voice  over  wires  by  means  of  electricity,  conferred 
upon  a  local  company,  called  the  Connecticut  Tele- 
phone Company,  organized  as  a  joint  stock  com- 
pany, under  the  laws  of  Connecticut,  a  certain 
license  to  use  its  inventions  within  the  city  of  Bridg- 
port,  in  Connecticut,  upon  certain  conditions,  one 
of  which  was  that  the  Connecticut  company  should 
not  allow  any  telegraph  company  to  use  the  system 
of  telephonic  exchange  which  it  was  authorized  to 
operate  in  Bridgeport,  for  the  purpose  of  receiving 
from  its  customers  messages  to  be  sent,  or  of  deliver- 
ing to  them  messsages  which  had  been  received  over 
its  wires,  unless  such  company  had  purchased  from 
the  American  Bell  Telephone  Company  the  right  to 
use  that  system.  It  appeared  that  the  Western 
Union  Telegraph  Company  had  purchased  from  the 
American  Bell  Telephone  Company  the  right,  ex- 
clusive of  all  other  telegraph  companies,  to  use  their 
telephone  exchange  system,  which  might  be  estab- 
lished in  the  United  States  under  the  patents  of  the 
American  Bell  Telephone  Company  in  connection 
with  their  business,  and  that  it  was  then  in  use  of 
the  system  of  the  Connecticut  Company  in  Bridge- 
port, to  the  exclusion  of  the  plaintiff.  The  plaintiff 
was  a  rival  telegraph  company,  called  the  American 

1  State  v.  Telephone  Co.,  36  Ohio  St.  296;  8.  C,  38  Am.  Rep.  583. 


140       LAW    RELATING    TO    TELEPHONE    COMPANIES. 

i iapid  Telegraph  Company,  and,  in  a  proceeding 
by  mandamus,  which  developed  this  state  of  facts, 
the  court  held  that  it  was  not  entitled  to  the  relief 
sought.  The  theory  of  the~  court  was  that  the 
American  Bell  Telephone  Company,  of  Massachu- 
setts, could  impose  the  restrictions  above  stated 
upon  a  grant  of  its  license  to  the  company  in  Con- 
necticut, and  that  the  imposition  was  valid ;  in 
other  words,  that  "the  Connecticut  company  could 
not  acquire  any  greater  right  to  the  use  of  the  pat- 
ents of  the  Massachusetts  company  than  the  latter 
should  choose  to  grant.  The  decision  was  rendered 
in  the  face  of  a  statute  of  Connecticut  providing,  in 
effect,  that  every  telephone  company  should  with 
impartiality  permit  persons  and  corporations  to 
transmit  speech  by  wire  through  its  instruments.1 
The  decision  is  entitled  to  very  little  respect. 

§    112.      What    if    Company   have   Lines   Extending 

into  other  states. — The  statutes  of  Indiana  elsewhere 
referred  to,2  are  construed  as  intended  only  to  con- 
trol telephone  service  within  the  State,  and,  so  lim- 
ited, they  are  not  an  interference  with  interstate 
commerce,  although  a  company  have  lines  extending 
into  other  States.3  Accordingly  it  was  held  that, 
on  a  complaint  demanding  telephone  connections 
and  facilities  for  communication  in  a  certain  city, 
to  which  complainant  is  by  law  entitled,  and  for 
which  the  legal  compensation  for  such  city  connec- 
tions has  been  tendered,  the  telephone  company 
cannot  defend  on  the  ground  that  to  furnish   con- 

1  American  Rapid  Telegraph  Company  v.  Connecticut  Telephone  Co., 
49  Conn.  352;  s.  C,  44  Am.  Rep.  237. 

2  Post.  §  117. 

3  Central  Union  Telephone  Co.  v.  Falley,  US  Ind.  194;  s.  C,  19  X. 
E.  Rep.  604. 


STATE    REGULATION.  141 

nections  would  put  complainant  in  connection  with 
the  company's  offices  outside  the  State.1 

§    113.      State    Regulation    of   Interstate  Messages 

Void. — On  constitutional  principles  already  consid- 
ered,2 it  has  been  held  by  the  Court  of  Chancery  of 
New  Jerse}^  that  a  message  sent  by  telephone  from 
one  State  to  another  is  commerce  between  the 
States,  and  cannot  be  prohibited  or  regulated  by 
injunction  in  either  State,  against  persons  or  corpo- 
rations engaged  in  sending  such  messages,  because 
they  or  it  do  not  pay  the  taxes  assessed  against  it 
by  such  State.3  Vice-Chancellor  Bird,  in  giving  the 
opinion  of  the  court,  after  reviewing  the  applicator y 
authorities  in  the  matter  stated  in  the  note  below/ 

1  Central  Union  Telephone  Co.  v.  Falley,  118  Ind.  194;  s.  c,  19  N.  E. 
Rep.  604. 

2  Ante,  §  5. 

3  In  re  Pennsylvania  Telephone  Co.  (X.  J.)/J  Rail.  &  Corp.  L.J.  112; 
S.  C,  20  Atl.  Rep.  846. 

4  "This  additional  assessment  the  defendant  insists  is  unlawful.  Its 
resistance  to  the  payment  of  this  additional  tax  is  based  upon  the  doc- 
trine that  it  is  unconstitutional  for  any  State  to  attempt  to  regulate 
commerce  between  the  States;  and  that  business  of  this  character 
orignating  in  one  State  and  terminating  in  another  is  such  commerce.  I 
believe  this  principle  was  so  recognized  in  the  case  of  Cable  Co.  v.  At- 
torney-General, 1  Dicks'  270.  In  that  case  Mr.  Justice  Knapp  said, in  de- 
livering the  opinion  of  the  court  of  errors  and  appeals:  'Railroads  and 
telegraphs  may  become  instruments  of  interstate  or  international  com- 
merce, and  when,  as  such  instrument,  they  are  in  action,  they  may  not  be 
obstructed  by  statute  imposition  and  restrictions;  hence  it  was  held,  in 
Telegraph  Co.  v.  Massachusetts,  125  U.  S.  530;  s.  c,  8  Sup.  Ct.  Rep.  961, 
that,  the  telegraph  company  having  brought  itself  within  the  provis- 
ions of  the  Act  of  Congress  of  July  24,  1866,  entitled  'An  act  to  aid  in 
the  construction  of  telegraph  lines,  and  to  secure  to  the  government  the 
use  of  the  same  for  postal,  millitary,  and  other  purposes,'  collection  of 
a  tax  imposed  upon  the  telegraph  company  on  its  property  in  Massa- 
chusetts could  not  be  enforced  by  injunction,  although  the  taxing  act 
provided  for  that  as  one  mode  of  enforcing  payment;  the  reason  being 
that  an  injunction  enforced  in  that  State  would  put  a  stop  to  its 
general  operation.  The  tax,  however,  was  held  to  be  valid,  and  the  State 
was  left  to  its  other  remedies  for  its  collection.  Pensacol  Telegraph 
Co.  v.  Western    Union  Tel.  Co.,  96  U.   S.  1;  Telegraph  Co.  v.  Texas 


142       LAW    RELATING    TO    TELEPHONE    COMPANIES. 

said  :  "The  case  of  Coe  v.  Errol1  marks  the  point 
where  the  subject  of  commerce  passes  out  of  the 
State's  power  to  tax,  and  comes  within  federal  pro- 
tection." "That  point  is  not- reached  when  they 
become  finished  production.  It  is  there  held  that 
goods,  the  product  of  a  State,  intended  for  exporta- 
tion to  another  State,  are  liable  as  part  of  the  gen- 
eral mass  of  property  of  the  State  of  another  origin, 
until  actually  started  in  course  of  transportation  to 
the  State  of  their  destination,  or  are  delivered  to  a 
common  carrier  for  that  purpose.  These  principles 
are  as  applicable  to  messages  by  telephone  as  to 
merchandise.  There  can  be  no  reasonable  distinc- 
tion made  between  the  office  of  common  carrier  of 
telephone,  and  the  office  of  a  common  carrier  of 
goods  by  railway  or  steamboat.  In  both  cases  it  is 
commerce  between  the  States.  In  eveiy  such  in- 
stance, the  consideration  is,  when  is  the  transaction 
within  the  constitutional  regulation  ?  The  disputes 
which  have  led  to  judicial  determination  of  the 
various  questions  have  been  respecting  those  con- 
ditions which,  upon  the  one  hand,  were  deemed  com- 
merce, and  upon  the  other,  not.  I  think,  therefore, 
the  injunction  prayed  for  in  this  case  ought  not  to 
be  allowed  ;  for,  if  it  were  to  be  allowed,  it  would 
most  certainly,  though  indirectly,  control  commerce 
between  States." 

§    114.      State   May    Regulate    Price   of    Service. — 
Telephone    companies    being    public    agencies    dis- 


105  U.  S.  460,  are  all  instances  of  illegal  interference  with  companies  as 
instruments  for  commerce.  But  each  of  these  cases  holds  the  com- 
panies to  be  subject  to  taxation,  otherwise  legal,  which  do  not  obstruct 
or  place  a  direct  burthen  upon  them  either  as  instruments  of  general 
commerce  or  as  agents  of  the  United  States. 
1  116  U.  S.  517;  s.  c,  6  Sup.  Ct.  Rep.  475.'  " 


STATE    AND    MUNICIPAL    REGULATION.  143 

charging  public  duties  analogous  to  those  of  common 
carriers,  or,  as  they  are  often  called,  common  car- 
riers of  messages  or  of  news,  the  State  may  limit  the 
price  at  which  they  shall  render  their  services  to 
the  public,  in  like  manner  as  it  may  limit  the 
charges  of  public  warehouses  and  of  common  car- 
riers whose  lines  exist  wholly  within  the  State.1 

§  115.  Powers  under  Revised  Statutes  of  Mis- 
souri :  Power  of  State  to  Regulate  Charges. — Tele- 
phone companies  incorporated  under  Article  5  of 
Chapter  21  of  the  Revised  Statutes  of  Missouri,  of 
1879,  have  power  to  own  and  operate  telephone 
lines,  to  establish  reasonable  charges  for  the  use  of 
the  same,  and  to  condemn  private  property  for  a 
right  of  way.  On  the  other  hand,  they  are  charged 
with  the  duty  of  receiving  and  transmitting  mes- 
sages with  impartiality  and  good  faith,  are  subject 
to  public  regulations,  including  the  right  of  the 
State  to  establish  a  maximum  rate  for  service,  and 
this  power  may  be  delegated  to  municipal  cor- 
porations.2 

§  116.  City  of  St.  L<ouis  no  Power  to  Regulate 
Charges  for  Telephone  Service. — The  charter  of  the 
City  of  St.  Louis  giving  to  the  mayor  and  assembly 
power  "to  license,  tax  and  regulate  telegraph  com- 
panies or  corporations,  and  all  other  business,  trades, 

1  Hadett  v.  State,  105  Ind.  250;  S.  C.  55  Am.  Rep.  201.  Compare  State 
v.  Bell  Telephone  Co.,  23  Fed.  Rep.  539;  Johnson  v.  State,  113  Ind.  143; 
Central  Union  Telephone  Co.  v.  Falley,  118  Ind.  194:  s.  c,  10  Am.  St. 
Rep.  114;  St.  Louis  v.  Bell  Telephone  Co.,  96  Mo.  623;  s.  c,  9  Am.  St. 
Rep.  370.  If  the  doctrine  of  the  decisions  so  holding  were  at  all  in 
doubt,  it  would  be  firmly  grounded  by  the  great  case  of  Muun  v.  Ill- 
inois, 94  U.  S.  113,  upholding  the  power  of  a  State  to  regulate  the 
charges  of  public  grain  elevators.  See  also  Ouachita  Packet  Co.  v. 
Aiken,  121  U.  S.  444;  Patterson  v.  Kentucky  97  U.  S.  501. 

2  St.  Louis  v.  Bell  Telephone  Co.,  90  Mo.  623;  S.  C,  9  Am.  St.  Rep. 
370;  10  S.  W.  Rep.  197. 


144       LAW    RELATING    TO    TELEPHONE    COMPANIES. 

vocations,  or  professions  whatever,"  makes  tele- 
phone companies,  ejusdem  generis  with  telegraph 
companies,  though  the  former  were  not  in  exist- 
ence at  the  date  the  charter  was  granted  ;  but  this 
power  to  "regulate,"  when  applied  to  telephone 
companies,  does  not  carry  with  it  the  power  to  fix 
a  rate  of  charges  by  ordinance  for  telephone  service. 
Nor  is  such  a  power  included  by  the  "  general  wel- 
fare "  clause  of  the  charter  of  the  city  of  St.  Louis, 
which  empowers  it  "to  pass  all  such  ordinances, 
not  inconsistent  with  the  provisions  of  this  charter 
or  the  laws  of  the  State,  as  may  be  expedient,  in 
maintaining  the  peace,  good  government,  health, 
and  welfare  of  the  city,  its  trade,  commerce  and 
manufactures,"  etc;1  nor  in  the  power  to  regulate 
the  use  of  the  streets,  and  an  ordinance  regulating 
such  charges  cannot  be  upheld  upon  any  such 
ground.2  This  defect  in  the  charter  powers  of  the 
city  of  St.  Louis  was  supplied  by  the  legislature 
at  its  next  session,  by  enacting  that  all  provisions 
granting  to  persons  authority  to  erect,  etc.,  and  to 
cities  and  towns  authority  to  regulate  telegraph  or 
telephone  lines,  shall,  so  far  as  applicable,  apply  to 
the  lines  for  transmission  of  intelligence  by  tel- 
ephone, whether  the  same  be  by  electricity  or 
otherwise.3 

§  117.  Decisions  under  Indiana  Statute. — Under 
the  Indiana  statute,4  such  a  company,  doing  a  gen- 
eral business,  will  be  compelled  to  furnish  any 
person  within  the  local  limits  of  its  business,  in  any 
town  or  city,  with  a  telephone  and   connections  for 

1  St.  Louis  v.  Bell  Telephone  Co.,  96  Mo.  623. 

2  Ibid. 

3  Mo.  Act.  June  7, 1889;  Acts  18S9,  eta.  434  p.  270. 
*  Act.  Ind.  April  8,  1885,  §§  2,  3. 


USE    OF    INSTRUMENT    FOR    RIVAL    COMPANY.       145 

his  own  use;  and  it  was  no  defense  to  say  that 
the  company  did  not  rent  telephones,  but  furnished 
such  service  by  means  of  public  stations  only.1  The 
company  cannot  avoid  liability  for  refusal  by  adopt- 
ing a  different  scheme,  and  charging  a  certain  sum 
for  each  conversation,  instead  of  charging  rentals.2 
Nor  is  the  right  to  a  mandate  to  compel  a  telephone 
company  to  give  telephone  connections  and  facili- 
ties, as  required  by  statute,  abridged  or  taken  away 
by  the  fact  that  the  statute  fixes  a  penalty  for  the 
violation  of  the  law.3 

§  118.  Attempted  Evasion  of  Statutory  Penalty. 
— Nor  can  such  a  company,  charging  more  than  the 
statute  prescribes,  evade  the  statutory  penalty  by 
a  transparent  attempt  to  divide  the  items  of  the 
charge  so  as  to  evade  the  law.4 

§  119.  Regulation  against  Use  of  Instrument  by 
Rival  Company. — A  by-law  of  a  telephone  company 
may  not  withhold  from  one  citizen  facilities  which 
it  grants  to  another.  It  may  make  and  enforce  a 
regulation  that  a  subscriber  shall  not  use  his  instru- 
ment in  transmitting  messages  for  a  rival  company. 
It  may  not,  however,  enforce  a  regulation  that  he 
shall  not  call  messengers  except  from  the  central 
office  of  the  telephone  company.  Such  a  regulation 
is  unreasonable,  since  the  business  of  supplying 
messengers  is  in  nowise  essential  to  the  conduct  of 


1  Central  Union  Telephone  Co.  v.  Bradbury,  106  Ind.  1;  S.  0.,  5  N. 
E.  Rep.  721;  Central  Union  Tel.  Co.  v.  Falley,  118  Ind.  194;  s.  c,  1!)  N. 
E.  Rep.  604;  Same  v.  Same,  118  Ind.  598;  S.  c,  20  N.  E.  Rep.  145. 

2  Central  Union  Telephone  Co.  v.  Falley,  118  Ind.  194;  s.  C,  19  N.  B. 
Rep.  604. 

3  Ibid. 

4  Johnson  v.  State,  113  Ind.  143. 

(10) 


146       LAW    RELATING    TO    TELEPHONE    COMPANIES. 

the  business  of  transmitting  messages  by  telephone, 
for  which  the  company  was  incorporated.1 

§  120.  Reg-ulation  as  to  Improper  Language. — A 
regulation  of  a  telephone  company  prohibiting  the 
use  of  improper,  vulgar  or  profane  language  in  com- 
municating over  its  wires,  has  been  held  reasonable.2 

§  121.  Telephonic  Communications  as  Evidence. 
— In  a  recent  case  in  Missouri  the  question  arose 
upon  the  admission  as  evidence  of  conversation  held 
through  the  telephone  between  some  one  at  the  in- 
strument in  the  plaintiff's  private  office  and  the 
witness.  It  was  admitted,  though  the  witness  did 
not  identify  the  voice  of  the  speaker  as  that  of  either 
of  the  plaintiffs  or  their  clerk,  and  the  court  held 
that  the  ruling  was  proper.  Barclay,  J. ,  said:  "The 
courts  of  justice  do  not  ignore  the  great  improve- 
ments in  the  means  of  intercommunication  Avhich 
the  telephone  has  made.  Its  nature,  operation, 
and  ordinary  uses,  are  facts  of  general  scientific 
knowledge,  of  which  the  courts  will  take  judicial 
notice  as  part  of  public  contemporary  history. 
When  a  person  places  himself  in  connection  with 
the  telephone  system  through  an  instrument  in  his 
office,  he  thereby  invites  communication,  in  relation 
to  his  business,  through  that  channel.  Conversa- 
tions so  held  are  as  admissible  in  evidence  as  per- 
sonal interviews  by  a  customer  with  an  unknown 
clerk  in  charge  of  an  ordinary  shop  would  be,  in 
relation  to  the  business  there  carried  on.  The  fact 
that  the  voice  at  the  telephone  was  not  identified 
does  not  render  the  conversation  inadmissible.   The 


1  People  v.  Hudson  River  Telephone  Co.,  19  Abb.  X.  Cas.  (N.  Y.) 
466;  S.  C,  10  N.  Y.  St.  Rep.282. 
2Pugh  v.  Telephone  Co.,  27  Alb.  L.  J.  161, 163. 


TELEPHONIC  COMMUNICATIONS    AS    EVIDENCE.       147 

ruling  here  announced  is  intended  to  determine 
merely  the  admissibility  of  such  conversations  in  such 
circumstances,  but  not  the  effect  of  such  evidence 
after  its  admission.  It  may  be  entitled,  in  each 
instance,  to  much  or  little  weight,  in  the  estimation 
of  the  triers  of  fact,  according  to  their  views  of  its 
credibility,  and  of  the  other  testimony  in  support 
or  in  contradiction  of  it."  ' 

§  122.  Admissibility  of  Conversations  Received 
Through  a  Public  Telephone  Operator. — It  has  been 
held  in  Kentucky,  by  a  divided  court,  that  where  a 
conversation  takes  place,  not  directly  between  the 
parties  over  the  telephone,  but  through  the  operator 
in  charge  of  a  public  telephone  station — the  person 
who  receives  the  message  from  the  operator  can 
state  what  the  operator  told  him — that  is,  can  de- 
tail the  message  as  the  operator  delivered  it  to  him, 
provided  there  was  other  evidence  that  the  party 
assumed  to  be  speaking  at  the  other  end  of  the  line 
did  use  the  instrument  at  the  time.2 

§  123.  Where  the  Voice  of  the  Speaker  was  Rec- 
ognized.— A  telephone,  it  is  well  known,  delivers  a 

1  Wolfe  v.  Missouri  Pacific  K.  Co.,  97  Mo.  473;  s.  c,  10  Am.  St.  Rep. 
331.  The  learned  editor  of  the  New  York  Law  Journal  indulges  in  the 
following  comments  on  the  last  cited  decision:  "We  have  always  felt 
doubtful  as  to  whether  the  court  did  not  go  a  little  too  far  in  this  case. 
It  is  evident  that  a  clerk  in  an  ordinary  shop,  in  apparent  charge  there- 
of, has  a  somewhat  different  authoiity  to  speak  for  his  employer  than 
aM  unknown  person  speaking  over  a  telephone.  In  each  case  it  is  a 
qnestion  of  presumptive  evidence,  but  the  presumption  is  very  much 
stronger  in  the.  case  of  the  clerk  in  the  store  than  of  the  speaker  over 
the  telephone.  The  question  as  to  where  is  the  clerk  is  absolutely  de- 
termined ;  as  to  where  is  the  speaker  over  the  telephone  is  only  a  matter 
of  very  great  probability.  On  the  second  point,  that  an  identification 
of  the  voice  of  the  speaker  through  the  telephone  is  not  necessary  to 
make  his  declarations  admissible,  we  think  the  court  went  to  a  very 
great  extreme,  and  we  doubt  whether  this  ruling  should  be  followed." 

2  Sullivan  v.  Kuykendall,  82  Ky.  483;  S.  C,  5G  Am.  Rep.  901. 


148       LAW    RELATING    TO    TELEPHONE    COMPANIES. 

sort  of  metallic  voice;  yet  it  may  be  assumed  that 
whatever  peculiarities  of  speech  a  particular  person 
may  possess  will  be  disclosed  by  this  instrument. 
Whatever  skepticism  may  exist  as  to  the  power  to 
recognize  the  voice  of  a  particular  person  over  the 
telephone,  it  has  been  held,  even  in  a  criminal  case, 
that  where  a  witness  testifies  that  he  called  up  a 
particular  person  over  the  telephone,  and  recognized 
his  voice,  he  may  testify  as  to  the  communication 
which  he  made.1 

§  124.  Admissibility  of  Answers  of  Person  Called 
up  where  Voice  not  Recognized. — This  question  was 
considered  at  length  in  a  decision  of  the  St.  Louis 
Court  of  Appeals  in  1886.  The  sole  question  which 
arose  on  the  record  was  whether  the  court  erred  in 
admitting  evidence  of  a  conversation  had  through  a 
telephone  between  the  plaintiff's  book-keeper  and 
a  person  who  answered  to  the  defendant's  name. 
The  book-keeper  testified  that  he  "called  up  by 
telephone  to  the  general  office  of  the  Bell  Telephone 
Company  for  defendant's  number,  and  was,  by  the 
central  office,  connected  therewith  ;  that  the  list  of 
the  telephone  company  showed  that  the  defendant 
had  two  telephones,  one  at  his  undertaking  estab- 
lishment on  Franklin  avenue,  in  the  city  of  St. 
Louis,  and  another  at  his  livery  stable,  on  Olive 
street ;  that  witness  was  not  certain  which  number 
he  called,  but  that  his  best  recollection  was  that  it 
was  the  Olive  street  number;  that  there  was  an  an- 
swer from  the  defendant's  number  to  the  telephone 
call ;  that  he  (the  witness)  did  not  know  whose  voice 
it  was,  and  does  not  now  know  ;  that  the  witness  did 


1  People  v.  Ward  (N.  Y.  Oyer  &  Terminer,  1885),  3  N.  Y.  Crim.  Rep. 

is:;. 


TELEPHONIC    COMMUNICATIONS    AS   EVIDENCE.      149 

not  know  the  defendant's  voice,  and  did  not  know 
the  defendant,  but  that  he  asked,  through  the  tele- 
phone, if  that  was  Stahl  (the  defendant),  and  the 
answer  was  'Yes.'  "  The  witness  was  then  asked 
to  give  the  conversation  then  had  through  the  tele- 
phone with  the  party  answering  the  call.  In  re- 
sponse to  this  question  the  witness  testified,  against 
the  objection  of  the  defendant,  "  that  he  asked  why 
the  defendant  did  not  pay  the  bill  for  which  this 
suit  was  brought,  and  that  party  answering  said, 
'All  right;  I  will  attend  to  the  matter  about  the 
first  of  the  month.'  "  A  previous  witness  had 
testified  for  the  plaintiff  to  a  conversation  through 
the  telephone  in  a  similar  manner  with  the  de- 
fendant, whose  voice  the  former  witness  identified.1 
§  125.  Reasons  for  Holding  Such  Testimony  Ad- 
missible.— The  foregoing  case  is  not  found  in  any  of 
the  digests;  it  has  entirely  escaped  the  attention  of 
the  legal  periodicals;  yet  as  it  is  the  only  case  in 
which  the  subject  has  been  considered  on  the  analo- 
gous authorities,  the  writer  feels  justified  in  sub- 
joining the  argumentative  portion  of  the  opinion 
entire.     Thompson,  J.,  delivering  the  opinion  of  the 

court,  said: 

"We  are  of  the  opinion  that  the  conrt  correctly  ruled  that  the  tes- 
timony was  admissible.  We  should  have  no  difficulty  in  so  hold- 
ing upon  principle,  but  we  find  on  examination  of  the  books 
several  decisions  upon  analogous  rules  touching  the  admissibility 
of  evidence.  It  is  said  by  a  recent  writer  of  reputation  :  'Evi- 
dence that  a  person  making  a  tender,  found  at  the  place  of  busi- 
ness of  the  other  party  a  person  answering  to  the  name,  who  said 
he  was  the  man  and  admitted  the  contract  to  be  his,  but  refused 
to  pay  the  money,  is  competent  to  go  to  the  jury  upon  the  ques- 
tion of  identity,  and  sufficient  to  uphold  a  verdict.'2     It  has  been 

1  Clobe  Printing  Co.  v.  Stabl,  23  Mo.  App.  451. 

2  Abbott's  Trial  Evidence,  31 G. 


150       LAW     RELATING   TO    TELEPHONE    COMPANIES. 

held  in  Massachusetts  that  a  letter  received  through  the  post- 
office,  purporting  to  be  written  in  reply  to  a  letter  sent  to  the  per- 
son by  whom  it  purports  to  be  signed,  is  admissible  without  proof 
of  the  handwriting,  though  the  question  was  not  deemed  impor- 
tant, and  was  not  much  considered.1  *  *  In  a  ease  in  the 
Superior  Courl  of  New  York  City,  evidence  that,  on  two  or  three 
occasions  when  the  witness  first  called  at  the  place  of  business  of 
the  defendant's  testator,  witness  was  told  that  the  testator  was 
out  of  town  and  that  there  was  no  one  to  represent  him,  and  that 
subsequently  the  witness  found  there  a  person  answering  to 
the  name  of  the  defendant's  testator,  who  said  that  he  was  the 
man  and  admitted  the  contract  sued  on  to  be  his,  but  refused  to 
pay  the  money  due  thereon,  was  held  competent  to  go  to  the  jury 
on  the  question  of  his  identity  and  sufficient  to  uphold  a  verdict 
for  tin'  plaintiff,  in  the  absence  of  any  evidence  tending  to  raise  a 
suspicion  of  mistake  or  collusion.2 

•'Several  analogous  English  cases  are  also  found.  Thus,  where 
a  witness,  called  to  prove  the  defendant's  handwriting,  had  cor- 
responded with  a  person  bearing  his  name,  who  dated  his  letters 
from  Plymouth  Dock,  where  the  defendant  resided,  and  where  it 
appeared,  that  no  other  person  of  the  same  name  lived,  this  evi- 
dence of  the  defendant's  identity  was  held  sufficient.3 

"In  like  manner  it  was  held  by  Lord  Kenyon  at  nisi  prius  that 
if  a  letter  be  sent  to  a  particular  person,  and  an  answer  be  received 
in  due  course,  the  fair  presumption  is  that  the  answer  was  written 
l>\  the  person  addressed  in  the  letter ;  and  accordingly  he  ruled 
that  a  witness  who  had  so  written  such  a  letter  and  received  such 
an  answer,  might  be  examined  as  to  the  genuineness  of  another 
paper,  for  the  purpose  of  showing  whether  it  was  or  was  not 
written  by  the  person  with  whom  he  had  this  correspondence.4 

"In  an  action  for  damages  for  a  negligent  injury  in  navigation, 
it  was  objected  that  the  evidence  did  not  show  that  the  defendant 
was  the  pilot  in  charge  of  the  vessel,  whereupon  the  plaintiff 
called  out  in  open  court,  'Mr.  Henderson'  (the  name  of  the  de- 
fendant), and  a  man  in  court  answered,  'Here;  I  am  the  pilot.' 
A  witness  then  testified  that  the  man  who  had  so  answered  was  at 
the  time  acting  as  pilot.     It  was  held,  reversing  an  order  directing 

1  State  v.  Hnulish,  14  Mass.  296. 

2  Howard  v.  Holbrook,  9  Bosw.  (N.  Y.)  237,  243. 

3  Harrington  v.  Fry,  Ryl.  &  M.  90. 

4  Carey  v.  Pitt,  Peake  Add.  Cas.  130. 


TELEPHONIC    COMMUNICATIONS    AS    EVIDENCE.     151 

a  nonsuit,  that  this  was  sufficient  evidence  of  identity  to  go  to  the 
jury.1 

"In  another  case  the  witness  had  stated  that  he  had  introduced 
a  person  of  the  name  of  the  defendant  to  the  plaintiff  as  a  cus- 
tomer, and  that  he  saw  him  write  a  letter,  which  was  produced, 
and  which  established  the  plaintiff's  claim ;  but  the  witness  had 
not  seen  the  person  since,  and  did  not  know  that  he  was  the  de- 
fendant. It  was  held  that  this  evidence  was  admissible,  and  was 
sufficient  to  support  a  verdict  for  the  plaintiff.2 

"In  an  action  against  an  alleged  acceptor  of  a  bill  of  exchange, 
the  only  evidence  of  his  acceptance  was  the  testimony  of  a  bank 
clerk  to  the  effect  that,  two  years  before,  he  saw  a  person  of  the 
defendant's  name  sign  his  name  in  a  book;  that  he  had  never 
seen  him  since,  but  that  he  thought  the  handwriting  was  the  same, 
and  had  since  seen  checks  bearing  the  same  signature.  It  was 
held  that  this  evidence  was  admissible.3 

"In  a  similar  action  against  the  alleged  acceptor  of  a  bill  of  ex- 
change, it  appeared  that  the  bill  had  been  sent  by  mail  for  accept- 
ance, directed  to  'Charles  Banner  Crawford,  East  India  House,' 
and  that  it  had  been  returned  accepted,  'C.  B.  Crawford.'  A 
witness  testified  that  the  signature  to  this  acceptance  was  the  sig- 
nature of  Charles  Banner  Crawford,  who  was  formerly  a  clerk  in 
the  East  India  House,  but  the  witness  did  not  know  whether  that 
Mr.  Crawford  was  the  defendant.  It  was  held  that  this  was 
sufficient  evidence  of  identity,  at  least  in  the  absence  of  an  affi- 
davit to  show  that  the  defendant  was  not  the  same  person.4 

"Any  person  examining  the  directory  of  the  city  of  St.  Louis, 
will  see  that  there  are  in  this  city  many  persons  who  possess  the 
same  christian  and  surname,  but  such  circumstances  have  not 
operated  to  do  away  with  the  familiar  rule,  acted  upon  in  this 
State,  and  so  far  as  we  know  in  all  other  jurisdictions,  that 
identity  of  name  is  prima  facie  evidence  of  identity  of  person.5 

"It  was  held  in  Massachusetts  in  a  criminal  trial  that,  for  the 
purpose  of  proving  that  the  defendant  had  made  certain  communi- 
cations  to   persons   in    New   York,  evidence  was  admissible  that 

1  Smith  v.  Henderson,  9  Mees.  &  W.  79S,  SOI. 

2  Sewell  v.  Evans,  4  Ad.  &  El.  (N.  S.)  626. 

3  Harrington  v.  Fry,  8  Scott,  384. 

4  Greenshields  v.  Crawford,  9  Mees.  &  W.  314. 

5  Flournoy  v.  Warden,  17  Mo.  435;  Gitt  v.  Watson,  18  Mo.  274;  State 
v.  Moore,  61  Mo.  279. 


152       LAW     RELATING    TO    TELEPHONE    COMPANIES. 

certain  telegraphic  messages  in  his  writing  had  been  delivered  to 
'lie  operators  of  the  telegraph  company,  other  evidence  being 
given  to  the  effect  that  such  messages  were  by  the  operators. 
transmitted  over  the  wires  to  the  persons  to  whom  they  were  ad- 
dressed by  the  defendant.  This  decision  was  approved  and 
applied  by  an  eminent  judge  in  a  celebrated  criminal  trial.1  It  is 
but  an  extension  of  the  familiar  rule  applicable  to  carriage  by  the 
post,  under  which  evidence  that  a  letter  was  deposited  in  the  post- 
office  properly  directed,  is  admissible  as  tending  to  show  that  it 
was  received  by  the  person  to  whom  it  was  addressed,  provided 
that  such  person  were  living  at  the  place  to  which  it  was  di- 
rected,  and  usually  received  his  letters  there.2 

••  Upon  a  somewhat  analogous  principle  it  has  often  been  held 
that  in  case  of  the  death  or  absence  from  the  country  of  a  sub- 
scribing  witness,  it  is  competent  to  prove  the  genuineness  of  his 
signature,  and  that  such  proof  will  raise  a  presumption  of  the 
genuineness  of  the  signature  which  the  subscribing  witness 
attested.3  And  although  the  rule  has  not  been  universally  ac- 
cepted,4 it  seems  to  be  the  law  in  this  State.5 

■•  But  laying  out  of  view  these  analogies,  a  decision  of  our  Su- 
preme Court  is  found  so  closely  analogous  to  the  case  at  bar  that 
it  may  be  treated  as  an  authority  which  we  should  not  be  at  lib- 
erty to  disregard.  The  action  was  under  the  statute  of  this  State, 
known  as  the  'Boat  and  Vessel  Act,'  for  the  non-performance  of 
a  contract  alleged  to  have  been  made  by  the  master  of  the  de- 
fendant steamboat  with  the  plaintiff  by  telegraph.  Evidence  was 
given  tending  to  show  that  the  plaintiff  sent  a  dispatch  to  the 
defendant  steamboat,  which  wTas  delivered  to  her  officers.  The 
plaintiff  then  offered  evidence  tending  to  show  that  a  dispatch 
purporting  to  come  from  the  master  of  the  steamboat  in  reply  to 
his  dispateli  addressed  to  him,  had  been  delivered  for  transmis- 
sion in  the  telegraph  office  at  the  place  where  the  boat  was,  and 


1  United  States  v.  Babcock,  3  Dill.  (U.  S.)  571,  575,  per  Dillon,  J. 

2 1  Greenl.  Ev.  Sec.  40;  Dana  v.  Kemble,  19  Pick.  (Mass.)  112;  Briggs 
v.  Hervey,  130  Mass.  187;  Huntley  v.  Whittier,  105  Mass.  391;  Bank  v. 
McMonigle,  60  Pa.  St.  156;  Bussard  v.  Levering,  6  Wheat.  (U.  S.)  102; 
Lindenberger  v.  Beall,  6  Wheat.  (U.  S.)  104. 

:  Adams  v.  Kerr,  1  Bos.  &  Pul.  361;  Nelson  v.  Wittal,  1  Barn.  &  Aid. 
19;  Sluby  v.  Chaplin,  4  Johns.  461. 

*  Robards  v.  Wolf  1  Dana  (Ky.),  155. 

5  Little  v.  Chauvin.  1  Mo.  020. 


TELEPHONIC    COMMUNICATIONS    AS    EVIDENCE.      153 

had  been  received  by  him,  but  without  offering  to  prove  that  such 
dispatch  had  been  in  fact  sent  by  the  master  of  the  defendant 
steamboat,  or  with  his  consent.  It  was  held  that  this  evidence 
was  admissible.  In  giving  the  opinion  of  the  court,  Scott,  J., 
said :  '  It  is  not  expected,  when  men  contract  b}r  telegraph,  that 
they  are  afterwards  to  be  bound  or  not,  as  their  passions  or  in- 
terest may  dictate.  Such  contracts  must  be  regarded  as  binding 
and  obligatory  as  if  made  in  the  ordinary  wa}\  Private  com- 
munications relative  to  business,  made  by  means  of  a  telegraph, 
are  usually  relied  on,  and  that  reliance  has  not  proved  unfounded. 
When  men  consent  to  use  the  telegraph  for  the  purpose  of  mak- 
ing an  agreement,  there  is  no  hardship  in  submitting  to  a  jury,  as 
evidence  of  their  consent  to  such  an  agreement,  those  facts  and 
circumstances  which  are  received  by  and  acted  upon  by  mankind 
in  communicating  through  that  medium.  Here,  the  defense  does 
not  turn  on  any  imposition  or  forgery  on  the  part  of  the  agents  of 
the  telegraph ;  but  the  plaintiff,  by  the  pleadings,  is  put  to  the 
proof  of  the  contract  on  which  he  has  sued.  The  evidence  is 
ample  to  show  that  a  communication  was  made  by  the  plaintiff  to 
the  defendant ;  but  the  difficulty  arises  in  showing  that  the  answer 
to  that  communication  was  from  the  agent  of  the  defendant.  The 
telegraphic  agent  testifies  that  the  dispatch  received  from  the 
plaintiff  was  delivered  to  the  officers  of  the  steamboat  Robert 
Campbell,  and  a  dispatch  in  answer  to  that  of  the  plaintiff  was 
deposited  in  his  office  to  be  forwarded  to  the  plaintiff,  which  was 
done  on  the  next  day.  If,  under  such  circumstances,  any  person 
had  received  a  dispatch  in  answer  to  one  forwarded  by  him,  he 
would  not  have  failed  to  act  upon  it.  His  conduct  would  have 
been  based  upon  the  faith  usually  given  to  the  correctness  and 
fidelity  with  which  such  business  is  transacted  by  the  agents  of 
the  telegraph.  For  these  reasons,  we  are  inclined  to  the  opinion 
that  the  evidence  offered  by  the  plaintiff  was  sufficient  to  permit 
the  dispatch  to  be  read  to  the  jury,  who  would  then,  from  all  the 
circumstances,  determine  whether  it  was  the  act  of  the  master  of 
the  boat.'1 

"The  only  decision  to  which  we  have  been  referred  where  the 
instrument  of  communication  was  a  telephone,  is  that  of  the  Court 
of  Appeals  of  Kentucky,  in  the  case  of  Sullivan  v.  Knykendall.2 

1  Taylor  v.  Steamboat  Co.,  20  Mo.  254,  260.  t 

2  82  Ky.  483;  s.  C,  56  Am.  Rep.  901. 


[54       I.AW     RELATING    TO    TELEPHONE    COMPANIES. 

In  thai  ease,  A.,  desiring  to  communicate  with  B.,  applied  to  the 
telephone  operator  to  cull  Ii.  The  operator  thereupon  held  what 
purported  to  be  a  conversation  with  15..  repeating  the  supposed 
communication  of  15.  to  A.  as  it,  came  over  the  wire.  It  was  held, 
in  an  action  between  A.  and  15..  that  A.  might  prove,  by  himself 
and  others,  what  the  operator  had  reported  to  him  as  coming  from 
15..  the  operator  himself  having  been  called  as  a  witness  and  not 
remembering  the  conversation. 

"All  these  decisions  proceed  upon  the  principle  that  those  evi- 
dentiary matters  upon  which  men  are  compelled  to  act  in  the 
ordinary  affairs  of  life  and  in  the  usual  transactions  of  business 
ought  to  be  allowed  to  go  to  the  jury  in  cases  where  they  become 
material  to  the  issues  on  trial.  The  telephone,  although  a  very 
recent  invention,  has  come  into  such  common  use  that,  we  think, 
as  the  learned  judge  of  the  circuit  court  is  reported  to  have  rea- 
soned, that  the  courts  may  properly  take  judicial  notice  of  the 
general  manner  and  extent  to  which  it  is  made  use  of  by  the  busi- 
ness community.  No  doubt  very  many  important  business  trans- 
actions .ire  every  da}r  made  by  telephonic  communications  of 
precisely  the  same  character  as  that  which  the  witness  was  al- 
lowed to  testify  in  this  case.  A  person  is  called  up  by  one 
desiring  to  communicate  with  him  by  means  of  a  connection  of 
their  respective  wires  through  what  is  known  as  the  central  office. 
A  conversation  ensues.  It  may  be  relative  to  the  most  important 
matters  of  business.  It  may  involve  a  contract  for  the  sale  of 
bonds  and  stocks,  instructions  from  a  principal  to  his  agent  touch- 
ing important  transactions,  or  the  acknowledgment  of  a  debt  due 
and  a  promise  to  pay  the  same.  The  use  of  this  instrument 
facilitates  business  to  such  an  extent  that  it  would  be  very  preju- 
dicial to  the  interests  of  the  business  community,  if  the  courts 
were  to  hold  that  business  men  are  not  entitled  to  act  upon  the 
faith  of  being  able  to  give  in  evidence  to  juries  replies  which  they 
receive  to  communications  made  by  them  to  persons  at  their 
usual  places  of  business  in  this  way. 

"  The  judgment  of  the  circuit  court  will  be  affirmed.  It  is  so 
ordered.     All  the  judges  concur."1 

§    126.      Taxation   of   Telephone   Companies. — The 

principal  corporation  established  to  develop  this 
great  invention  was  organized  under  a  special  act  of 

1  Globe  Printing  Co.  v.  Stahl,  23  Mo.  App.  451-4.-)'.). 


TAXATION    OF    TELEPHONE    COMPANIES.  155 

the  legislature  of  Massachusetts,  "to  incorporate 
the  American  Bell  Telephone  Company."  It  was 
held  by  the  Supreme  Court  of  the  United  States,  in 
the  Telephone  Cases,  already  alluded  to,1  that  the 
authority  conferred  by  this  special  act  authorized  it 
to  select  its  corporate  name,  and  made  the  certifi- 
cate provided  by  another  statute2  conclusive  of  its 
corporate  existence.  Thus  organized,  this  com- 
pany proceeded,  as  many  companies  organized  to 
develop  patented  inventions  now  do,  to  establish 
sub-corporations,  so  to  speak,  in  each  of  the  States, 
which  were  to  be  its  licensees,  for  the  supposed 
reason  that  such  a  course  would  obviate  sundry 
laws  unfriendly  to  foreign  corporations.  To  these 
sub-corporations  it  leases  its  instruments  and 
licenses  their  use.  The  entire  business  of  furnish- 
ing telephonic  facilities  to  the  public,  which,  in 
addition  to  the  instruments,  involves  the  mainte- 
nance of  an  extensive  plant,  consisting  of  wires, 
poles,  etc.,  is  carried  on  by  these  local  bodies,  who 
receive  the  compensation  paid  by  the  public,  which 
constitutes  the  entire  earnings  arising  from  the  use 
and  employment  of  the  company's  instruments  in 
the  particular  territory.  The  Bell  Company  re- 
ceives from  the  local  companies,  as  compensation 
for  the  use  of  its  instruments  at  its  office  in  Boston, 
a  royalty  payable  monthly,  in  advance,  without  re- 
gard to  whether  the  instruments  are  used  or  not. 
It  has  no  office  or  officer,  unless  it  be  those  of  the  local 
companies,  and  has  no  direct  business  relations 
with  the  public.  In  a  case  where  these  facts  were 
developed,  wherein  the  relations  between  the  parent 

1  Ante,  §  102. 

2  Mass.  St.  1870,  ch.  224,  §  411. 


156       LAW    RELATING    TO    TELEPHONE    COMPANIES. 

corporation  in  Massachusetts  and  thesubcorporations 
in  New  York  were  under  consideration,  it  was  held 
that  the  local  companies  were  its  licensees,  and  not  its 
nts;  and  that  it  was  not  "doing  business"  in  New 
York,  within  the  meaning  of  a  statute  of  that  State,1 
taxing  the  gross  earnings  of  telephone  companies 
"doing  business"  in  this  State.2  It  appeared  that 
the  contracts,  in  addition,  provide  for  the  use  of 
private  lines,  and  require  leases  for  the  use  of  tele- 
phonic instruments  to  the  patrons  of  such  lines  to 
be  made  in  the  name  of  the  Bell  Company  ;  but  it 
was  stipulated  that  the  provision  was  inserted  in  the 
contracts  to  prevent  the  illegitimate  use  of  private 
lines  by  unauthorized  persons,  and  to  guard  against 
infringements  of  the  company's  patents.  It  also 
appeared  that  the  management  and  control  of  the 
entire  business  was  confided  to  the  local  corporations, 
without  any  material  distinction  between  the  various 
classes,  and  that  they  collect  the  dues  for  the  pri- 
vate lines,  as  in  other  cases,  paying  the  Bell  Com- 
pany, a  royalty  for  the  use  of  the  instruments.  In 
view  of  these  facts,  the  court  held  that,  even  in  re- 
spect of  the  private  lines,  the  local  corporations 
were  not  agents  of  the  parent  corporation.3 

§    127.      Taxation  of  Stock    of  Parent    Corporation 

in  Local  Corporation. — Upon  the  facts  stated  in  the 
preceding  section,  the  fact  that  the  Bell  Company 
was  a  stockholder  in  the  local  corporations  did  not 
render  its  local  stock  taxable  in  New  York  under  a 
statute  of  that  State,4  taxing  the  capital  stock  of  all 

1  Laws  N.  Y.  1881,  oh.  361,  §  6. 

2  People  v.  American  Bell  Telephone  Co.,  117  X.  Y.  241;  s.  c,  22  X. 
E.  Rep.  1057;  S.  c,  27  N.  Y.  State  Rep.  459. 

s  Ibid. 

4  Laws  X.  Y.  1881,  ch.  361,  §  3. 


LICENSE   TAX.  157 

corporations  doing  business  in  the  State.1  A  sim- 
ilar view  was  taken  of  this  question  in  Pennsylvania, 
the  Supreme  Court  of  that  State  holding  that  the 
fact  that  the  Bell  Company  had  an  office  within  the 
State,  and  made  contracts  with  the  local  corpora- 
tions for  the  introduction  and  use  of  its  apparatus 
within  the  State,  by  which  contracts  it  reserved  to 
itself  the  right  to  take  possession  of  the  instruments 
and  use  them,  upon  certain  breaches  of  the  contract 
by  the  local  companies  did  not  render  the  parent 
company  liable  to  taxation  upon  its  capital  stock, 
under  the  Pennsylvania  act  of  June  7,  1879,  un- 
less upon  such  breach  of  the  contracts  it  should 
come  into  the  State  and  use  and  operate  the  tel- 
ephones itself.2 

§  128.  License  Tax. — Undoubtedly  the  State  may 
impose  a  license  tax  upon  a  telephone  company  for 
the  privilege  of  doing  business  within  its  limits,  or 
may  authorize  a  municipal  corporation  to  impose 
such  a  tax  for  a  like  privilege  within  the  town  or 
city.  But  it  has  been  held  that  where  the  State 
has  imposed  upon  such  a  company  an  annual 
license  fee  in  lieu  of  all  taxes  for  any  purpose,  a 
municipal  corporation  cannot  impose  a  general 
license  fee.3  So,  it  has  been  held  that,  if  a  munici- 
pal corporation  grants  to  a  telephone  company 
without  charge,  the  privilege  of  erecting  its  poles 
along  the  public  streets,  it  thereby  disables  itself 
from  imposing  a  charge  of  five  dollars  per  pole  upon 


1  People  v.  American  Bell  Tel.  Co.,  117  N.  Y.  241;  s.  c,  22  N.  E. 
Rep.  1057;  S.  C,  27  N.  Y.  State  Rep.  459. 

2  Com.  v.  American  Bell  Telephone  Co.,  129  Pa.  St.  217;  8.  C,  4G 
Phila.  Leg.  Int.  342;  24  W.  N.  C.  1S7;  18  Atl.  Rep.  122. 

8  Wisconsin  Telephone  Co.  v.  Oshkosh,  62  Wis.  32. 


158      LAW    RELATING    TO    TELEPHONE    COMPANIES. 

the  company.1  But  the  soundness  of  this  decision 
is  not  clear.  Taxes  are  imposed  for  the  purpose  of 
supporting  the  government,  and  the  power  of  tax- 
ation, so  important  to  the  public  welfare,  is  never 
presumed  to  be  surrendered  by  implication  ;  and 
an  ordinance  granting  a  license  to  occupy  the  streets 
with  such  erections  is  entirely  consistent  with  the 
assumption  that  the  company  will  be  subject  to 
future  taxation  ;  and  the  laying  of  a  tax  at  so 
much  a  pole  seems  to  be  merely  a  mode  of  gradu- 
ating it  so  as  to  conform  to  the  amount  of  property 
and  the  extent  of  the  business.2 

§  129.  Privileged  Taxation  of  Telegraph  Com- 
panies.— A  statute  of  Indiana,  drawn  with  the 
apparent  purpose  of  meeting  decisions  of  the  Su- 
preme Court  of  the  United  States  already  cited, 
provides  that  the  "transmission  of  messages  by  tel- 
egraph for  hire,  from  point  to  point  within  this 
State,  by  carriers  by  telegraph,  *  *  *  is  hereby 
declared  a  privilege,  for  which  such  carriers  shall 
pay  to  the  State  annually,  a  sum  of  money  to  be 
determined"  as  specified;  and  penalties  for  the 
violation  of  the  act  are  prescribed.3 

§    130.      Statutory  Schemes  of  Taxation. — In  many 

recent  statutory  schemes  of  taxation,  telephone 
companies  are  specially  named.  In  Arkansas  they 
are  grouped  for  taxation  with  a  number  of  other 
corporations  and  taxed  like  others/  In  Alabama 
the}7  are  grouped  for  taxation  with   telegraph  com- 


1  City  of  New  Orleans  v.   Great  South.   Telephone,  etc.  Co.,  40  La. 
An.  41 ;  s.  C,  3  South.  Rep.  533. 

2  See  a  learned  article  on  this  subject  by  Adelbert  Hamilton.  27  Am. 
L.  Reg.  (N.  S.)  426,  n. 

3  Ind.  Act  March  11,  1889;   L.  1889,  ch.  215,  p.  389. 
*  Ark.  Dig.  Stats.  18S3,  §§  5645,  5656. 


STATUTORY    SCHEMES    OF    TAXATION.  159 

panies  and  a  tax  is  laid  on  their  gross  receipts.1  In 
Kentucky,2  Minnesota,3  and  Wisconsin,4  they  are 
taxed  separately  from  other  corporations  on  their 
gross  receipts.  In  Pennsylvania  they  are  grouped 
for  taxation  with  many  other  corporations  and  like- 
wise taxed  on  their  gross  receipts.5  In  New  Hamp- 
shire they  are  taxed  according  to  the  value  of  their 
tangible  property,  and  in  proportion  to  the  taxation 
of  the  other  property  through  the  State.6  In  Texas 
there  is  a  State  license  tax  of  fifty  dollars  in  each 
county  in  which  such  a  company  does  business,  and 
a  county  license  tax  often  dollars.7 

1  Ala.  Code  1887,  §§  454,  504,  508. 

2  Gen.  Stat.  Ky.  1888,  p.  1046,  §  5. 

Minn.  Act  March  3,  1887;  2  Gen.  Stat.  p.  217. 
*  Laws  Wis.  1883,  ch.  345,  §§  1,  2;  Id.  1885,  p.  313. 

5  Penn.  Act  June  1,  1889,  §  23;  Supt.  to  Revenue  Act  of  1889. 

6  N.  H.  Laws  1883,  ch.  1010. 

7  Rev.  Civ.  Stats.  Tex.  1888,  Art.  4665. 


160         OBLIGATIONS    OF   TELEGRAPH    COMPANIES. 


CHAPTER   VI. 


GENERAL  OBLIGATIONS  OF  TELEGRAPH  COMPANIES. 

Section. 

136.  Public  Nature  of  their  Employment. 

137.  Not  Liable  as  Common  Carriers. 

138.  Reasons  for  Distinguishing  their  Liability  from  that  of  Common 

Carriers. 

139.  Remote  Analogy  to  the  Undertaking  of  a  Common  Carrier. 

140.  Liable  for  What  Degree  of  Care. 

141.  View  that  they  are  Liable  for  a  High  Degree  of  Diligence,  Skill 

and  Care. 

142.  Whether  the  Requisite  Degree   of  Care  was   Employed  is  a 

Question  for  a  Jury. 

143.  Bound  to  Transmit  all  Lawful  Messages  Tendered. 

144.  And  Under  Reasonable  Regulations. 

145.'    Not  Bound  to  Transmit  Messages  in  Furtherance  of  Unlawful 

Undertakings. 
140.    Liable  for  Transmitting  Forged  Messages. 
147.     Illustration  of  the  Foregoing. 

145.  Not  Liable  for  Fraud  Happening  in  Consequence  of  Negligence 

of  their  Agent. 
1  19.    Not  Liable  for  Cashing  Fictitious  Money  Order. 

150.  Liable  for  Transmitting  Libelous  Messages. 

151.  Bound  to  Transmit  Messages  as  Written. 

152.  Not  Liable  for  Mistake  of  their  Agent  in  Correcting  Erroneous 

Message. 

153.  Not  Bound  to  Transmit  Oral  Messages. 


§    136.      Public    Nature    of    their    Employment. — 

In  England  the  obligation  of  a  telegraph  company 
to  its  customers  is  regarded  as  resting  merely  in 
contract,  and  to  be  measured  only   by  the  agree- 


NOT    LIABLE    AS    COMMON    CARRIERS.  161 

ment  made  between  the  parties.1  This  rule,  which 
enables  a  corporation  engaged  in  a  public  employ- 
ment to  dictate  to  the  scattered  members  of  the 
community  who  must  employ  it,  the  terms  upon 
which  it  will  serve  them,  has  not  found  favor  in  the 
American  courts.  In  those  courts  it  is  regarded  as  a 
public  institution.  It  serves  a  public  purpose.  The 
exercise  of  the  right  of  eminent  domain  is  a  condition 
essentially  precedent  to  its  existence,  and  special 
laws  are  generally  enacted  for  the  preservation  of 
its  property  and  for  the  secrecy  of  business  com- 
munications made  over  its  lines.2 

§  137.  Not  Liable  as  Common  Carriers. — By  the 
principles  of  the  common  law,  originating  in  what  in 
England  was  called  the  custom  of  the  realm,  a  common 
carrier  is  liable  for  the  loss  or  damage  of  goods  en- 
trusted to  him  for  carriage,  happening  through  any 
other  agency  than  the  act  of  God  or  the  public 
enemy.     It  is  well  known  that  the  reason  for  im- 

1  Playford  v.  United  Kingdom  Tel.  Co.,  L.  R.  4  Q.  B.  706;  Dickson 
v.  Reuter's  Tel.  Co.,  3  C.  P.  Div.  1;  s.  c,  2  C.  P.  Div.  62. 

2  Parks  v.  Alta  California  Tel.  Co.,  13  Cal.  422;  De  Rutte  v.  New 
York,  etc.  Tel.  Co.,  30  How.  Pr.  413;  1  Daly  (N.  Y.),  547;  Tassniore  v. 
Western  Union  Tel.  Co.,  78  Pa.  St.  242;  Western  Union  Tel.  Co.  v. 
Carew,  15  Mich.  525;  s.  c,  2  Thomp.  Neg.  828;  Wann  v.  Western 
Union  Tel.  Co.,  37  Mo.  481;  Western  Union  Tel.  Co.  v.  Shotter,  71 
Ga.  760;  Western  Union  Tel.  Co.  v.  Blanchard,  68  Id.  299;  s.  c,  45 
Am.  Rep.  480;  Tyler  v.  Western  Union  Tel.  Co.,  60  111.  421;  s.  c,  14 
Am.  Rep.  38;  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433;  s.  c, 
Allen  Tel.  Cas.  471;  Bartlett  v.  Western  Union  Tel.  Co.,  62  Me.  209, 
214;  Breese  v.  United  States  Tel.  Co.,  4S  N.  Y.  132;  s.  C,  8  Am.  Rep. 
526,  per  Earl,  C;  Allen  Tel.  Cas.  663;  Telegraph  Co.  v.  Griswold,  37 
Ohio  St.  301;  s.  c,  41  Am.  Rep.  500;  New  York,  etc.  Tel.  Co.  v.  Dry- 
burg,  35  Pa.  St.  298;  s.  c,  Allen  Tel.  Cas.  157;  Wolf  v.  Western  Union 
Tel.  Co.,  62  Pa.  St.  83;  s.  c,  1  Am.  Rep.  387;  Western  Union  Tel.  Co. 
v.  Neill,  57  Tex.  283;  s.  c,  44  Am.  Rep.  589;  Candee  v.  Western  Union 
Tel.  Co.,  34  Wis.  471;  s.  C,  17  Am.  Rep.  452;  Abraham  v.  Western 
Union  Tel.  Co.,  0  West  Coast  Rep.  163;  s.  c,  11  Sawy.  (U.  S.)  28. 

(ID 


102        OBLIGATIONS    OF    TELEGRAPH    COMPANIES. 

posing  this  stringent  liability  upon  a  common  car- 
rier was  to  protect  the  public  against  thefts  and 
other  misprisions  of  the  carrier's  servants.  The 
same  reasons  do  not  apply  in  the  case  of  a  telegraph 
company  ;  for,  in  a*strict  sense,  there  is  nothing  to 
steal ;  nor  is  there  a  strict  analogy  between  the 
transmission  of  news  by  electricity  and  the  carriage 
of  goods.  In  telegraphy  no  ponderable  substance 
is  transmitted.  The  telegraph  company  merely 
undertakes  to  perform  a  service  for  the  sender  of 
the  message.  This  he  is  obliged  to  perform  through 
the  agency  of  servants  more  or  less  skillful ;  of  in- 
struments more  or  less  perfect ;  by  the  use  of  a 
subtle  fluid  or  force,  the  nature  of  which  is  still  un- 
known to  science,  which  is  liable  to  work  imperfectly 
in  consequence  of  induction,  atmospheric  disturb- 
ance, and  a  variety  of  physical  causes  not  entirely 
within  human  control.  Such  being  the  nature  of 
the  employment,  the  courts  have  finally  united  in 
the  view  that  a  telegraph  company  is  not  liable  as 
an  insurer  against  all  accidents  not  the  result  of  the 
act  of  God  or  of  the  public  enemy,  as  is  a  common 
carrier.1 

1  Tyler  v.  Western  Union  Tel.  Co.,  60  111.  421 ;  s.  C,  14  Am.  Eep.  38; 
Birney  v.  New  York,  etc.  Tel.  Co.,  18  Md.  341;  s.  c,  Allen  Tel.  Cas. 
!'.'■" :  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.),  226;  s.  c,  Allen  Tel. 
Cas.  306;  Grinnell  v.  Western  Union  Tel.  Co.,  113  Mass.  299;  s.  c,  IS 
Am.  Rep.  485;  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525;  s.  C, 
Allen  Tel.  Cas.  345;  s.  c,  2  Thomp.  Neg.  82S;  Leonard  v.  New  York, 
etc.  Tel.  Co.,  41  N.  Y.  544;  s.  c,  1  Am.  Rep.  446;  s.  c,  Allen  Tel.  Cas. 
500;  Breese  v.  United  States  Tel.  Co..  48  N.  Y.  132;  s.  c,  8  Am.  Rep. 
526;  Allen  Tel.  Cas.  663:  Schwartz  v.  Atlantic,  etc.  Tel.  Co.,  18  Hun 
(N.  Y.),  157;  De  Rutte  v.  New  York,  etc.  Tel.  Co.,  1  Daly  (N.  Y.),  547; 
8.  C,  30  How.  Pr.  403;  Telegraph  Co.  v.  Griswold,  37  Ohio  St.  301;  8. 
C,  41  Am.  Rep.  500;  New  York,  etc.  Tel.  Co.  v.  Dryburg,  35  Pa.  St. 
2Mv;  ..  c.,  Allen  Tel.  Cas.  157;  Pinckney  v.  Western  Union  Tel.  Co.,  19 
8.  71;  Abraham  v.  Western  Union  Tel.  Co.,  0  West  Coast  Rep.  162; 
Baxter  v.  Dominion  Tel.  Co.,  37  Up.  Can.  Q.  B.  470;  Baldwin  v.  United 


NOT    LIABLE    AS    COMMON    CARRIERS.  163 

§  138.  Reasons  for  Distinguishing-  Their  Liability 
from  That  of  a  Common  Carrier. — The  reasons  for 
distinguishing  the  two  employments  have  been  fre- 
quently and  forcibly  stated,  but  nowhere  with 
greater  clearness  than  in  the  opinion  of  Johnson, 
J.,  in  Breese  v.  United  States  Telegraph  Company ^ 
as  follows  :  "I  cannot  refrain  from  observing  here,, 
that  the  business  in  which  the  defendant  is  en- 
gaged, of  transmitting  ideas  only  from  one  point  to 
another,  by  means  of  electricity  operating  upon  an 
extended  and  insulated  wire,  and  giving  them 
expression  at  the  remote  point  of  delivery  by  certain 
mechanical  sounds,  or  by  marks  or  signs  indented, 
which  represent  words  or  single  letters  of  the  alpha- 
bet, is   so   radically    and  essentially   different,  not 

States  Tel.  Co.,  45  N.  Y.  744;  s.  c,  54  Barb.  (N.  Y.)  505;  6  Abb.  Pr.  (N. 
S.)  405;  lLans.  (N.  Y.)  125 ;  Passmore  v.  Western  Union  Tel.  Co.,  78  Pa- 
st. 238 :  Wann  v.  Western  Union  Tel.  Co.,  37  Mo.  472 ;  Washington,  etc. 
Tel.  Co.  v.  Hobson,  15  Gratt.  (Va.)  122;  Bartlett  v.  Western  Union  Tel. 
Co.,  62  Me.  209;  Western  Union  Tel.  Co.  v.  Fontaine,  58  Ga.  433;  Camp 
v.  Western  Union  Tel.  Co.,  1  Mete.  (Ky.)  164;  Bryant  v.  American  Tel 
Co.,  1  Daly  (N.  Y.),  -575,  5S4;  Aiken  v.  Telegraph   Co.,  5  S.  C.  358 
Dickson  v.  Reuter's  Tel.  Co.,  3  C.  P.  Div.  1,  7;  s.  c,  2  C.  P.  Div.  62 
Fowler  v.  Western  Union  Tel.  Co.,  80  Me.  381;  s.  c,  6  Am.  Rep.  211 
214,  opinion  by  Foster,  J.;  Little  Rock,  etc.  Tel.  Co.  v.  Davis,  41  Ark 
79;  Western  Union  Tel.  Co.  v.  Munford,  87  Tenn.  190;  s.  c,  10  Am.  St 
Rep.  630;  Abraham  v.  Western  Union  Tel.  Co.,  23  Fed.  Rep.  315.    It 
was  held  in  California,  in  1859,  that  telegraph  companies  are  common 
carriers  and  subject  to  the  severe  rule  of  liability  of  such   carriers. 
Parks  v.  Alta  California  Tel.  Co.,  13  Cal.  422.     But  in  1874  this  rule 
was  changed  in  that  State  by  the  adoption  of  the  civil  code  (Civ.  Code 
Cal.  §  2168),  which  provides   that  such   companies   are  not  common 
carriers,  but  "must  use  great  care  and  diligence  in  the  transmission 
and  delivery  of   messages."    A  corporation  which,  though  organized 
under  the  N.  Y.  Stat,  of  184S,  "for  the  incorporation  and  regulation  of 
telegraph  companies,"  has  in  its   service  messengers  to  deliver  parcels 
for  those  who  may  so  employ  it,  is  liable  for  a  loss  occasioned  by  the 
delivery,  by  its  messenger,  of  a  parcel  contrary  to  the  instructions  of 
the  sender.    Feiber  v.  Manhattan  Dist.  Tel.  Co.,  3  ¥.  Y.  Supp.  116;  s. 
c,  22  Abb.  N.  C.  (N.  Y.)  121.     See  also  ante,  §  103. 
1  45  Barb.  (X.  Y.)  274,  292;  s.  c,  31  How.  Pr.  (N.  Y.)  86. 


104         OBLIGATIONS    OF    TELEGRAPH    COMPANIES. 

only  in  its  nature  and  character,  but  in  all  its 
methods  and  agencies,  from  the  business  of  trans- 
porting merchandise  and  material  substances  from 
place  to  place  by  common  carriers,  that  the  peculiar 
and  stringent  rules  by  which  the  latter  are  control- 
led and  regulated,  can  have  very  little  just  and 
proper  application  to  the  former.  And  all  attempts 
heretofore  made  by  courts  to  subject  the  two  kinds 
of  business  to  the  same  legal  rules  and  liabilities, 
will,  in  my  judgment,  sooner  or  later,  have  to  be 
abandoned  as  clumsy  and  undiscriminating  efforts 
and  contrivances  to  assimilate  things  which  have 
no  natural  relation  or  affinity  whatever,  and,  at 
best,  but  a  loose  and  mere  fanciful  resemblance. 
The  bearer  of  written  or  printed  documents  and 
messages  from  one  to  another,  if  such  was  his  busi- 
ness or  employment,  might  very  properly  be  called 
and  held  a  common  carrier;  while  it  would  obviously 
be  little  short  of  an  absurdity  to  give  that  designa- 
tion or  character  to  the  bearer  of  mere  verbal  mes- 
sages, delivered  to  him  by  mere  signs  of  speech,  to  be 
communicated  in  like  manner.  The  former  would 
have  something  which  is,  or  might  be  the  subject 
of  property,  capable  of  being  lost,  stolen,  and 
wrongfully  appropriated ;  while  the  latter  would 
have  nothing  in  the  nature  of  property  which  could 
be  converted  or  destroyed,  or  form  the  subject  of 
larceny,  or  of  tortious  caption  and  appropriation, 
even  by  the  '  king's  enemies.'  "  More  briefly  stated 
by  another  judge,  a  telegraph  company  is  not  held 
to  the  liability  of  a  common  carrier,  because  the 
transmission  of  messages  is  necessarily  subject  to 
the  risk  of  mistake  and  interruption:  "The  wire 
is  exposed  to  the  interference  of  strangers  ;  a  sur- 


LIABLE    FOR   WHAT    DEGREE    OF    CARE.  165 

charge  of  electricity  in  the  atmosphere,  or  a  failure 
of  or  irregularity  in  the  electrical  current,  may  stop 
communication  ;  and  it  is  continually  subject  to 
danger  from  accident,  malice  and  climatic  influence; 
while  the  company  has  not  the  actual,  immediate 
custody  of  the  message,  as  the  common  carrier  has 
of  the  merchandise  it  carries.''1 

§  139.  Remote  Analogy  to  the  Undertaking  of  a 
Common  Carrier. — Some  courts  have  found  an  anal- 
ogy between  the  undertaking  of  a  telegraph  com- 
pany and  that  of  a  common  carrier.2  But  it  has 
been  well  said  that  the  analogy  is  not  perfect,3  and 
it  has  been  denied  in  an  English  case  that  there  is 
any  analogy.4  But  the  discussion  is  meaningless; 
for  all  the  decisions  unite  on  the  proposition  that  a 
telegraph  company  is  not  liable  as  an  insurer,  but 
only  by  reason  of  negligence  or  willful  default  in  the 
performance  of  the  duty  which  it  undertakes. 

§  140.  Liable  for  What  Degree  of  Care.  —  The 
degree  of  care  which  telegraph  companies  are  bound 
to  bestow  upon  the  performance  of  their  duties  is 
variously  stated.  It  is  sometimes  said  that  they 
ought  to  use  "a  high,  perhaps  the  very  highest 
degree  of  care  and  diligence  in  their  operation,"5 


1  Smith  v.  Western  Union  Tel.  Co.,  83  Ky.  104;  s.  c,  4  Am.  St.  Rep. 
126,  130,  opinion  by  Holt,  J.;  citing  Western  Union  Tel.  Co.  v. 
Blanchard,  68  Ga.  299;   8.  c,  45  Am.  Rep.  480. 

2  Western  Union  Tel.  Co.  v.  Hope,  11  Bradw.  (111.)  289;  True  v.  In- 
ternational Tel.  Co.,  60  Me.  9;  s.  c,  11  Am.  Rep.  1<56;  Telegraph  Co.  v. 
Griswold,  37  Ohio  St.  301 ;  s.  c.  41  Am.  Rep.  500.  See  also  Manville  v. 
Western  Union  Tel.  Co.,  37  Iowa,  214;  s.  c,  18  Am.  Rep.  8;  Tyler  v. 
Western  Union  Tel.  Co.,  60  111.  421,  427. 

8  Aiken  v.  Telegraph  Co.,  5  S.  C.  358. 

4  Playford  v.  United  Kingdom,  etc.  Tel.  Co.,  L.  R.  4  Q.  B.  714,  per 
Lush,  J. 

5  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525;  Tyler  v.  Western 
Union  Tel.  Co.,  60  111.  428,  434. 


1(36        OBLIGATIONS    OF    TELEGRAPH    COMPANIES. 

or  "exact  diligence."1  Other  courts  are  satisfied 
with  "  ordinary  care  and  vigilance,"2  or  "  due  and 
reasonable  care,"  as  stated  by  Bigelow,  J.,  in  an 
important  case.'  Perhaps  there  is  little,  if  any  dif- 
ference in  these  terms  as  applied  to  cases  under 
discussion.  They  all  undoubtedly  mean  that  these 
corporations  shall  use  a  degree  of  care  proportionate 
to  the  hazards  and  possibilities  of  mistake  in  their 
business.4  As  the  transmission  of  dispatches  is  a 
most  delicate  operation  in  many  particulars,  ordi- 
nary diligence  in  the  operation  and  management 
of  telegraph  lines  would  demand  a  degree  of  atten- 
tion from  the  agents  of  the  companies  fairly  denomi- 
nated extraordinary  when  applied  to  other  concerns 
of  life.  » 

§  141 .  View  that  They  are  Liable  for  a  High  Degree 
of  Diligence,  Skill  and  Care. — "The  degree  of  care," 
it  has  been  reasoned,  "which  these  companies  are 
bound  to  use,  is  to  'be  measured  with  reference  to 
the  kind  of  business  in  which  they  are  engaged. 
As  compared  with  many  other  kinds  of  business, 
the  care  required  of  them  might  be  called  '  great 
care. '  While  meaning  really  the  same,  it  is  variously 
stated  by  different  courts  in  the  decisions  to  which 
we  have  referred:  '  due  and  reasonable  care,'  '  ordi- 
nary care  and  vigilance,'  'reasonable  and  proper 
care,'  'a  reasonable  degree  of  care  and  diligence,' 
1  care  and  diligence  adequate  to  the  business  which 

1  Passmore  v.  Western  Union  Tel.  Co.,  78  Pa.  St.  242. 

2  Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744,  751. 
"  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.),  226. 

*  Western  Union  Tel.  Co.  v.  Edsall,  63  Tex.  668;  Womack  v.  Western 
Union  Tel.  Co.,  58  Tex.  176;  Western  Union  Tel.  Co.  v.  Broesche,  72 
Tex.  654;  s.c,  10  S.  W.  Rep.  734;  Gulf,  etc.  R.  Co.  v.  Wilson,  69  Tex. 
739;  s.  c,  7  S.  W.  Rep.  653;  Beasley  v.  Western  Union  Tel.  Co..  39  Fed. 
Rep.  181. 


LIABLE    FOR    WHAT    DEGREE    OF    CARE.  167 

the}'-  undertake;'  '  with  skill,  with  care,  and  with 
attention;'  'a  high  degree  of  responsibility.'  These 
are  but  the  varied  forms  of  expressing  the  require- 
ment of  what  is  known  in  law  as  ordinary  care,  as 
applied  to  an  employment  of  this  nature,  an  em- 
ployment which  is  not  that  of  an  ordinary  bailee. 
The  public,  as  a  general  rule,  have  no  choice  in  the 
selection  of  the  company.  They  have  none  in  the 
selection  of  its  servants  or  agents.  They  have  no 
control  over  the  agencies  or  instrumentalities  used 
in  conducting  the  business  of  the  company.  The 
public  must  take  the  agencies  which  the  company 
furnishes,  and  they  have  no  supervision  over  its 
management  or  methods  of  performing  the  service 
which  it  holds  itself  out  as  willing  and  ready  to 
perform.  And  while  we  do  not  hold  that  these 
companies  are  common  carriers,  and  subject  to  the 
same  severe  rule  of  responsibility,  we  think  that 
those  who  engage  in  the  business  of  thus  serving 
the  public  by  transmitting  messages  should  be  held 
to  a  high  degree  of  diligence,  skill  and  care,  and 
should  be  responsible  for  any  negligence  or  unfaith- 
fulness in  the  performance  of  their  duties."1  It  is 
also  stated  that  "  a  telegraph  company  which  holds 
itself  out  to  the  public  as  ready  to  transmit  all  mes- 
sages delivered  to  it,  is  bound  to  have  suitable  in- 
struments and  competent  servants,  and  to  see  that 
the  service  is  rendered  with  that  degree  of  care  and 
skill  which  the  peculiar  nature  of  the  undertaking- 
requires."  But  it  is  also  said  that  this  duty  would 
not  impose  a  liability  upon  the  company  for  want 
of  skill  or  knowledge,  not  reasonably  attainable  in 

1  Fowler  v.  Western  Union  Tel.  Co..  80  Me.  381 ;  s.  C,  G  Am.  St.  Rep. 
211,  215,  per  Foster,  J. 


168        OBLIGATIONS    OF    TELEGRAPH    COMPANIES. 

the  art,  nor  for  errors  or  imperfections  which  arise 
from  causes  not  within  its  control,  or  which  are  not 
capable  of  being  guarded  against.1 

§  142.  Whether  the  Requisite  Degree  of  Oare  was 
Employed  is  a  Question  for  a  Jury. — As  in  Other  ac- 
tions for»damages  grounded  on  the  negligent  failure 
of  the  defendant  to  perform  a  duty  voluntarily  as- 
sumed by  contract  or  cast  upon  him  by  operation  of 
law,  the  question  whether  he  has  exercised  the  care 
required  of  him  in  the  given  case  will  be  a  question 
for  a  jury,  exeept  in  cases  where  the  evidence  is  so 
clear  and  unequivocal  that  fair-minded  men  could 
not  entertain  a  doubt  upon  it,  in  which  case  it  will 
be  a  question  of  law  for  the  court.2  An  instruction 
that  "the  question  of  diligence  is  one  to  be  deter- 
mined by  the  jury  from  all  the  facts  and  circum- 
stances; and  if  you  believe  from  the  evidence  that 
defendant  used  such  care  and  diligence  as  a  prudent 
man,  under  like  circumstances,  would  use  in  his 
own  behalf  to  deliver  the  message,  and  failed 
through  ix)  fault  of  defendant  company  or  its  agents 
or  employees,  then  you  will  find  for  defendant,"  has 
been  held  sufficient  on  the  question  of  negligence.3 

§  143.  Bound  to  Transmit  all  Lawful  Messages  Tend- 
ered.— Telegraph  companies  are  the  servants  of  the 
public,  and  are  bound  to  act  whenever  called  upon, 
their  charges  being  paid  or  tendered.  They  are  in 
that  respect  like  common  carriers,  the  law  imposing 
on  them  a  duty  which  they  are  bound  to  discharge. 
The  extent  of  their  liability  is  to  transmit  correctly 

1  Fowler  v.  Western  Union  Tel.  Co.,  80  Me.  381 ;  s.  c,  6  Am.  St.  Rep. 
211,  215,  per  Foster,  J. 

2  2  Thomp.  Neg.  1235  et  seq.;  2  Thomp.  Tr.,  §§  1663,  1665. 

s  Gulf,  etc.  R.  Co.  v.   Wilson,  69  Tex.  739;  s.  c,  7  S.  W.   Rep.   653. 
(sub  nam.  Gulf,  etc.  R.  Co.  v.  Miller.) 


UNLAWFUL    AND    FORGED    MESSAGES.  169 

the  message  as  delivered.1  They  cannot  avoid  lia- 
bility on  the  ground  that  compensation  was  not 
paid  at  the  time  the  message  was  delivered  by  the 
sender,  if  the  agent  declined  to  receive  the  compen- 
sation at  that  time,  and  requested  that  the  person 
to  whom  the  message  was  sent  be  allowed  to  pay.2 

§  144.  And  Under  Reasonable  Regulations. — It 
has  been  reasoned  that  such  companies,  by  accept- 
ing the  benefits  of  the  law  authorizing  the  condem- 
nation of  land  for  the  erection  of  their  lines  and 
buildings,  place  themselves  under  an  obligation  to 
the  public  to  permit  the  use  of  their  lines  by  all 
persons,  under  reasonable  regulations;  and  that  this 
obligation  need  not  be  created  by  statute,  but  rests 
upon  them  as  an  implication  of  law.3 

§  145.  Not  Bound  to  Transmit  Messages  in  Further- 
ance of  Unlawful  Undertakings. — It  has  been  held, 
however,  that  such  a  company  is  not  bound  to  trans- 
mit a  message,  the  design  of  which  is  to  furnish  the 
means  of  carrying  on  an  unlawful  business,  and  that 
this  is  so,  regardless  of  the  motive  which  actuated 
the  agents  of  the  company  in  refusing  to  transmit  it. 
Accordingly,  an  injunction  was  denied  to  compel  a 
telegraph  company  to  furnish  the  keeper  of  a 
"bucket  shop"  with  stock  quotations.4 

§  146.      Liable  for  Transmitting  Forged  Messages. — 

If  a  telegraph  company  receives  and  transmits, 
through  negligence  or  willfulness,  a  dispatch  forged 
in  the  name  of  a  person  other  than  the  sender,  it 

!  Western  Union  Tel.  Co.  v.  Dubois,  12S  111.  248. 

2  Western  Union  Tel.  Co.  v.  Yopst,  118  Ind.  248;  s.  c,  20  N.  E.  Rep. 
222. 

3  State,  etc.  Turnpike  Co.  v.  American,  etc.   News  Co.,  43  N.  J.  L. 
381. 

*  Smith  v.  Western  Union  Tel.  Co.,  84  Ky.  064;  s.  c.,2  S.  W.  Rep.  483. 


170        OBLIGATIONS    OF    TELEGRAPH    COMPANIES. 

becomes  liable  to  the  person  to  whom  the  message 
is  sent  for  the  proximate  damages  thereby  sustained.1 
Where  the  agent  of  a  telegraph  company,  at  one  of 
its  stations,  had  power  to  delegate  his  authority,  and 
employed  another  person  to  transmit  and  receive 
messages  in  his  place,  and  such  person  sent  a  false 
message,  purporting  to  come  from  the  cashier  of  a 
bank,  directing  another  bank  to  pay  to  a  fictitious 
person  a  sum  of  money,  and  the  sender  then  person- 
ated the  fictitious  person  and  obtained  the  money, 
without  any  negligence  on  the  part  of  the  paying 
bank,  it  was  held  that  the  telegraph  company  was 
responsible  to  the  bank  for  the  loss.2  Where  the 
agent  of  a  telegraph  company,  who  was  also  agent 
of  an  express  comjoany,  sent  a  forged  dispatch  to  a 
merchant  requesting  him  to  forward  money  to  his 
correspondent  to  purchase  grain,  and  the  telegram 
was  received  and  in  the  usual  course  of  business 
complied  with,  and  the  money  was  intercepted  and 
converted  to  his  own  use  by  the  agent,  the  tele- 
graph company  was  held  liable,  although  an  action 
might  also  have  been  maintained  against  the  ex- 
press company.3  In  like  manner,  the  fact  that  the 
person  thus  defrauded  into  the  payment  of  a  forged 
draft  has  a  remedy  ex  contractu  against  a  solvent 
indorser,  is  not  a  bar  to  an  action  ex  delicto  against 


iStrause  v.  Western  Union  Tel.  Co.,  8  Biss.  (U.  S.)  104;  Elwood 
v.  Western  Union  Tel.  Co.,  45  N.  Y.  549;  s.  c,  6  Am.  Rep.  140. 

1  Bank  v.  Western  Union  Tel.  Co.,  52  Cal.  280.  For  the  purpose  of 
the  decision  the  court  assumed  that  an  agent  of  a  telegraph  company 
has  no  authority  to  appoint  a  sub-agent  to  perform  his  duties  in  sending 
and  receiving  dispatches. 

3  McCord  v.  Western  Union  Tel.  Co.,  39  Minn.  181;  s.  C,  39  N.  W. 
Rep.  315;  1  L.  R.  A.  143;  25  Am.  &  Eng.  Corp.  Cas.  578. 


FORGED    AND    FRAUDULENT    MESSAGES.  171 

the  telegraph  company,  and  it  is  not  necessary  to 
sue  the  indorser  first.1 

§  147.  Illustration  of  the  Foregoing. — This  is  well 
illustrated  by  a  case  where  the  plaintiffs  were  bankers 
doing  business  at  Pithole  in  Pennsylvania.  They 
received  from  the  Western  Union  Telegraph  Com- 
pany the  following  message,  purporting  to  come 
from  Erie  :  "  Keystone  Bank  will  pay  the  check  of 
T.  F.  McCarthy  to  the  amount  of  $20,000.  J.  J. 
Towne,  Cashier  Keystone  Bank. ' '  The  fact  was  that 
the  message  had  been  presented  to  the  operator  at 
Erie  by  McCarthy  himself.  The  operator  knew 
McCarthy  by  that  name.  He  showed  no  authority 
from  the  cashier  to  transmit  the  message,  and  the 
operator  did  not  require  proof  of  his  authority. 
McCarthy  went  forward  to  Pithole  and  presented 
himself  at  the  bank  in  time  to  draw  from  the  bank 
$10,000  on  the  faith  of  this  telegram.  He  obligingly 
left  the  other  $10,000  to  his  credit  in  the  bank.  The 
message  turned  out  to  be  fraudulent.  The  bankers 
brought  an  action  against  the  telegraph  company 
for  damages,  and  recovered  the  $10,000  which  they 
had  thus  paid,  with  interest.  It  was  held  that  the 
operator  at  Erie  had  been  guilty  of  gross  negligence 
in  sending  a  telegram  of  this  importance  without 
proof  of  its  authenticity,  and  the  judgment  was 
accordingly  affirmed.2 

§  148.  Not  Liable  for  Fraud  Happening1  in  Conse- 
quence of  Negligence  of  Their  Agent. — A  telegraph 
company  is  not,  however,  liable  for  the  fraud  of  a 
third  person,  where  the  opportunity  to  commit  the 


1  Strause  v.  Western  Union  Tel.  Co.,  8  Biss.  (U.  S.)  104. 
-  Elwood  v.  Western  Union  Tel.  Co.,  45  N.  Y.  549;  s.  c,  6  Am.  Rep. 
140. 


172         OBLIGATIONS    OF    TELEGRAPH    COMPANIES. 

fraud  arises  out  of  the  negligence  of  the  agent  of  the 
company  in  transmitting  the  dispatch.  The  reason  is 
that,  in  such  a  case,  the  damage  is  not  &  probable,  and 
hence  a  proximate  consequence  of  the  negligence, 
but  is  too  remote.  Thus,  A.  went  to  the  office  of  a 
telegraph  company  and  sent  a  dispatch  to  the  plaintiff 
asking  for  $500.  By  the  negligence  of  the  defend- 
ant's servants,  the  message  was  changed  so  as  to 
read  $5,000.  The  plaintiff  sent  this  sum  to  A.,  and 
the  sum  was  so  large  that  it  tempted  A.'s  cupidity 
to  such  an  extent  that  he  ran  away  with  it.  It  was 
held  that  the  defendant  was  not  liable  for  the  loss 
of  the  money,  for  the  reason  that  its  negligence  was 
not  the  proximate  cause  of  it.1  The  court  proceeded 
upon  the  well  known  doctrine  in  the  law  of  dama- 
ges, that  where  the  plaintiff  sets  on  foot  a  train  of 
causes  which  might  or  might  not  lead  to  an  injury, 
but  the  injury  is  actually  produced  by  the  wrongful 
intervention  of  a  third  person,  which  intervention 
was  not  the  natural  consequence  of  the  original  set- 
ting, on  foot  of  the  train  of  causes,  the  person  origi- 
nally starting  such  train  of  causes  is  not  liable.  The 
intervention  of  the  third  person  breaks  the  train  of 
causation,  so  to  speak.2 

1  Lowery  v.  Western  Union  Tel.  Co.,  60  N.  Y.  198;  s.  C,  19  Am.  Rep. 
154. 

2  Cases  illustrating  this  .principle  are:  Grain  v.  Petrie,  6  Hill  (N. 
Y.),  522;  Vicars  v.  Wilcox,' 8  East,  1;  Knight  v.  Gibbs,  1  Ad.  &  El.  43; 
Carter  v.  Towne,  103  Mass.  507:  Davidson  v.  Nichols,  11  Allen  (Mass.), 
514;  Park  v.  Cohoes,  10  Hun(N.,Y.),  531;  Griggs  v.  Fleckenstein,  14 
Minn.  SI;  Harrison  v.  Collins,  86  Pa.  St.  153;  Proctor  v.  Jennings,  6 
Nev.  83;  Jenks  v.  Wilbraham,  11  Gray  (Mass),  142;  Tutein  v.  Hurley, 
98  Mass.  211 ;  2  Thonrp.  Neg.  p.  1089.  But  see  Pasten  v.  Adams,  49  Cal.  87 ; 
Powell  v.Devenney,  3  Cush.  (Mass.)  300.  The  test  by  which  to  determine 
the  liability  of  the  defendant  is,  to  consider  whether  the  act  of  the  in- 
termediate wrong-doer  was  of  such  a  nature  that  it  was  likely  to 
flow,  and   hence   to  be   anticipated,  from   the  original  negligence  or 


FORGED    AND  FRAUDULENT    MESSAGES.  173 

§  149.  Not  Liable  for  Cashing  a  Fictitious  Money 
Order. — An  impostor  at  Cincinnati  sent  a  dispatch, 
in  the  name  of  B.,  over  the  Western  Union  Tele- 
graph Company's  line  to  C,  at  Selma,  in  Alabama, 
requesting  C.  to  send  a  telegraphic  money  order  to 
B.  at  Cincinnati.  C.  complied  with  the  request, 
and  sent  a  telegraphic  money  order  over  the  same 
line  to  B.,  and  took  from  the  company  the  follow- 
ing receipt  :  "  Received  from  C.  $40,  to  be  paid  to 
B.  at  Cincinnati,  O."  The  telegraph  company, 
on  the  same  day,  handed  the  money  over  to  the 
impostor,  who  sent  the  dispatch,  personating  B.  The 
impostor  was  not  known  to  the  company's  agent,  or 
identified  as  the  person  whom  he  had  personated.  In 
an  action  by  C.  against  the  telegraph  company,  to 
recover  the  money  which  he  had  thus  lost,  it  was 
held  that  the  defendant  was  not  liable,  there  being 
no  circumstances  to  create  suspicion  of  the  fraud  in 
the  minds  of  its  agents.1 


wrong  of  the  defendant.  If  it  was,  then  the  defendant  is  liable,  other- 
wise not.  This  is  well  illustrated  by  the  Squib  Case,  2  W.  Black.  892, 
where  the  squib  was  wrongfully  thrown  in  the  market  place,  and,  fall- 
ing against  a  by-stander,  was  thrown  by  the  latter  from  him  to  avoid  its 
injurious  effects.  Here  it  was  held  that  such  an  act,  on  the  part  of  the 
person  against  whom  the  squib  first  fell,  was  to  be  anticipated  by  the 
person  originally  throwing  it,  and  heuce  he  was  liable  to  the  person 
hurt.  It  is  also  well  illustrated  by  the  Negro  Boy  Case,  4  Denio  (N.  Y.) , 
364,  where  a  negro  boy,  in  trying  to  escape  from  the  angry  pursuit  of 
the  defendant,  knocked  the  faucet  out  of  a  cask  of  wine.  Here,  on  the 
principle  that  the  defendant  had  set  in  motion  the  force  which  caused 
the  loss,  it  was  held  that  he  was  liable,  although  it  is  not  quite  easy  to 
see  that  he  should  have  anticipated  such  a  catastrophe  as  likely  to  fol- 
low from  what  he  did. 

1  Western  Union  Tel.  Co.  v.  Meyer,  61  Ala.  158;  s.  c,  32  Am.  Rep.  1. 
This  decision  is  clearly  wrong.  When  a  telegraph  company  engages  in 
the  business  of  banking  it  ought  to  be  held  to  the  same  rules  whieh  are 
imposed  upon  bankers,  common  carriers  and  other  bailees.  One  of 
those  rules  is  that  the  banker  is  bound  to  know  its  customer,  and  is  ab- 
solutely liable  for  the  payment  of  money  to  a  person  not  entitled  to  re- 


174        OBLIGATIONS    OF   TELEGRAPH    COMPANIES. 

§  150.       Liable  for  Transmitting  Libelous  Messages. 

— A  Canadian  court  has  held  that  the  communica- 
tion by  a  telegraph  company,  to  the  associated  press, 
of  a  message  which  is  libelous-  on  its  face,  given  it 
for  transmission,  is  a  publication  which  makes  the 
company  liable,  especially  where  it  refuses  to  dis- 
close the  name  of  the  sender.1 

§  151.      Bound  to  Transmit  Messages  as  Written. — 

In  a  leading  case  it  has  been  ruled  that  telegraph 
companies,  like  printers,  must  "follow  copy,"  and 
that  they  do  not  exonerate  themselves  from  liability 
for  mistakes  where  they  assume  to  deviate  from 
copy,  even  to  translate  abbreviations.  Thus,  where 
a  message,  as  delivered  to  a  telegraph  company, 
directed  the  party  to  whom  it  was  addressed  to  send 
"  two  hand  bouquets,"  and  the  message  as  received 

ceive  it.  It  seems  probable  from  its  language  that  the  above  opinion 
was  originally  written  upon  this  theory,  but  that  the  judge  who  wrote  it 
was  overborne  by  his  associates  in  the  consultation  room.  Manning, 
J.,  in  the  course  of  his  reasoning,  correctly  says :  "By  engaging  in  the 
business  of  transferring  money  by  telegraph,  between  persons  at  a  dis- 
tance from  each  other,  for  which  it  charged  large  commissions,  it  took 
upon  itself  the  responsibility  of  doing  the  service  correctly,  and,  like  a 
banker,  who  by  mistake  pays  a  draft  to  some  one  who  falsely  personates 
the  payee,  or  a  carrier  for  hire  who  delivers  goods  to  one  not  the  con- 
signee, must  make  good  the  amount  so  lost.  And  if  the  company  is  not 
held  to  the  duty  of  taking  pains  to  ascertain  the  identity  of  the  person 
to  whom  the  money  transferred  by  telegraphic  orders  is  to  be  paid, 
nothing  would  be  easier  than  to  use  the  telegraph  as  an  instrument  for 
committing  frauds.'''  This  was  well  said,  and  the  conclusion  irresisti- 
bly followed  it  that  the  company  was  liable;  but  at  this  point  the  opin- 
ion broke  down  and  the  learned  judge  continued:  "My  brothers  think 
that  where  there  is  nothing  to,  create  suspicion  in  the  minds  of  the  com- 
pany's agents,  it  is  for  the  party  on  whom  the  demand  is  made  to  ascer- 
tain for  himself  whether  he  who  makes  it  is  the  person  he  professes  to 
be,  and  that  the  company  has  no  right  to  refuse  payment  of  the  money 
to  him  in  reply  to  whose  message  the  order  to  pay  is  sent.  I  was 
strongly  inclined  to  the  other  conclusion.  But  the  case  is  a  new  one, 
and  I  defer  to  their  opinion." 

1  ArmchAmbault  v.  Great  X.  W.  Tel.  Co.  (Quebec  Court  App.),  1888, 
11  Montr.  Leg.  News  368;  s.  c,  14  Queb.  L.  R.  8. 


MUST   "follow  copy."  175 

read  "two  hundred  bouquets,"  and,  in  an  action 
against  the  company,  it  undertook  to  justify  by 
proving  that  the  word  "  hand  "  in  the  original  mes- 
sage was  written  "  hund,"  it  was  held  that  this  was 
no  justification, — Woodward,  J.  saying:  The  tele- 
graph company  did  not  send  Leroy's  message  as  he 
wrote  it.  If  written  as  the  company's  agent  read  it, 
the  word  '  hand  '  was  written  '  hund  ;  '  and  if  the 
company  had  sent  the  word  '  hund  '  to  Dryburg, 
they  would  have  been  in  no  fault.  Their  agent, 
however,  assumed  that  hundred  was  meant,  and 
accordingly  added  the  three  letters  '  red,'  which  did 
all  the  mischief.  We  do  not  understand  that  there 
was  any  dot  after  the  letters  '  hund  '  to  indicate  a 
contraction  ;  so  that  the  agent's  inference  that  the 
word  '  hundred  '  was  the  word  meant  was  entirely 
gratuitous.  The  wrong,  then,  of  which  plaintiff  com- 
plains, consisted  in  sending  him  a  different  message 
from  that  which  they  had  contracted  with  Leroy 
to  send.  That  it  was  wrong,  is  as  certain  as  that  it 
was  their  duty  to  transmit  the  message  for  which 
they  were  paid.  Though  telegraph  companies  are 
not,  like  common  carriers,  insurers  for  the  safe  de- 
livery of  what  is  entrusted  to  them,  their  obliga- 
tions, as  far  as  they  reach,  spring  from  the  same 
sources — the  public  nature  of  their  employment,  and 
the  contract  under  which  the  particular  duty  is 
assumed.  One  of  the  plainest  of  their  obligations 
is  to  transmit  the  very  message  prescribed.  To  'fol- 
low copy,'  an  imperative  law  of  the  printing  office, 
is  equally  applicable  to  the  telegraph  office.  *  *  * 
The  company  claimed  that  their  operator  was  a  skill- 
ful and  careful  one.  Then  his  negligence  in  this  in- 
stance was  the  more  apparent  and  inexcusable.      If 


176        OBLIGATIONS    OF   TELEGRAPH    COMPANIES. 

the  handwriting  was  so  bad  that  he  could  not  read 
it  correctly,  lie  should  not  have  undertaken  to  trans- 
mit it;  but,  the  business  of  transmission  assumed, 
it  was  plainly  his  duty  to  send  what  was  written. 
It  was  no  affair  of  his  that  the  message  would  have 
been  insensible.  Messages  are  often  sent  along  the 
wires  that  are  unintelligible  to  the  operator.  When 
he  presumed  to  translate  the  handwriting  and  to 
add  letters  which  confessedly  were  not  in  it,  he 
made  the  company  responsible  to  Dryburg  for  the 
damages  that  resulted  from  his  wrong-doing."  ' 

§  152.  Not  Liable  for  Mistake  of  Their  Agent  in  Cor- 
recting Erroneous  Message. — In  line  with  the  rule  of 
the  preceding  paragraph,  it  has  been  held  by  the 
Commission  of  Appeals  of  Texas,  that  where  the 
message,  as  delivered  for  transmission  to  the  agent 
of  the  telegraph  company,  is,  on  being  read  over  by 
him  to  the  sender,  discovered  by  the  sender  to  be 
erroneous,  and  thereupon  the  agent  assumes  to  cor- 
rect it  at  the  request  of  the  sender,  and  makes  a 
mistake  in  correcting  it,  so  that  it  is  transmitted  as 
originally  written,  the  company  is  not  liable  for 
damages  arising  from  the  mistake,  or  from  the  fail- 
ure to  transmit  it  as  intended  to  be  corrected.  The 
case  was  that  the  plaintiff  carried  to  the  defendant's 
telegraph  office  a  message  written  by  himself  in 
these  words:  "Can  put  stock  on  cars  fourteen 
hands  up  twenty  and  half  dollars  two  cars  good 
sheep  waiting."  The  receiving  clerk  read  the  mes- 
sage over  aloud,  and  the  plaintiff  discovered  that 
there  was  a  mistake  in  it.  The  words  "twenty  and 
half"   should  have  been   "twenty-two  and  half." 


1  New   York,  etc.  Tel.   Co.    v.   Dryburg,   35   Pa.  St.  298;    s.  c,  78 
Am.  Dec.  238. 


ORAL     MESSAGES.  177 

The  clerk  undertook  to  correct  the  mistake  by  in- 
terlining the  proper  words.  But  he  also  made  a 
mistake  and  put  the  interlineation  in  the  wrong- 
place,  so  that  the  dispatch  when  corrected  read  thus: 
"Can  put  stock  on  cars  fourteen  hands  up  twenty 
and  half  dollars  two  cars  good  two  sheep  waiting." 
The  message  was  in  fact  delivered  to  the  person  to 
whom  it  was  addressed  exactly  as  the  plaintiff  had 
originally  written  it,  the  interlineation  which  the 
clerk  had  attempted  to  make  having  been  from  some 
cause  omitted.  The  plaintiff  did  not  read  over  the 
message,  or  hear  it  read  after  it  had  been  corrected 
by  the  clerk.  The  clerk,  in  his  testimony,  claimed 
to  have  made  the  correction  at  the  request  of  the 
plaintiff;  but  the  plaintiff  testified  that  the  clerk 
offered  to  make  the  correction,  and  was  permitted 
to  do  so  by  him.  It  further  appeared  from  the  evi- 
dence that  it  was  not  only  not  the  duty  of  the  re- 
ceiving clerk  to  alter  messages  which  were  brought 
into  the  office,  but  that  he  was  not  permitted  to 
do  so.  His  duties  were  simply  to  receive  the  mes- 
sage, count  the  words,  receive  the  money,  and  con- 
vey the  message  to  the  operator.  On  this  state  of 
facts  the  court  held  that  the  plaintiff  could  not  re- 
cover; reasoning  that,  in  assuming  to  correct  the 
message  for  the  plaintiff,  the  clerk  was  not  acting 
within  the  scope  of  the  employment  of  his  master, 
the  telegraph  company,  and  that  it  accordingly 
made  no  difference  whether  he  acted  sua  sponte,  or 
at  the  request  of  the  plaintiff.1 

§  153.      Not  Bound  to  Transmit  Oral  Messages. — In 
the  absence  of  evidence  of  any  custom  of  a  telegraph 

1  Western  Union  Tel.  Co.  v.  Foster,  G4  Tex.  220;  s.  C,  53  Am.  Rep. 
754. 

(12) 


178        OBLIGATIONS    OF    TELEGRAPH    COMPANIES. 

company  to  receive  messages  orally  delivered  for 
transmission,  a  failure  to  transmit  such  a  message 
is  not  a  ground  for  recovering  damages  against  the 
company.1  Accordingly  it  was  held  that  the  plaint- 
iff could  not  recover  damages  against  a  telegraph 
company  for  the  failure  of  its  operator  to  transmit 
a  message  to  him  informing  him  that  he,  the  oper- 
ator, had  been  unsuccessful  in  a  search  for  a  doctor 
which  he  had  made  at  the  plaintiff's  request, — no 
such  message  having  been  charged  or  paid  for.2 

1  Western  Union  Tel.  Co,  v.  Dozier,  62  Miss.  288;  s.  c,  7  South.  Rep. 
325. 

2  Ibid. 


PENALTIES    AGAINST    TELEGRAPH    COMPANIES.     179 


CHAPTER  VII. 


STATUTORY  PENALTIES  AGAINST  TELEGRAPH  COMPANIES. 

SECTION. 

157.  General  Obligation  to  Transmit  Messages  in  the  Order  in  Which 

They  are  Received. 

158.  Statutes  Enforcing  this  Obligation. 

159.  Indiana  Statute  Giving  Penalty  for  Bad  Eaith,  Partiality,  or 

Discrimination. 

160.  Missouri  Statute  Giving  a  Penalty. 

161.  Not  Liquidated  Damages,  but  a  Penalty. 

162.  Jury  how  Instructed  as  to  Statutory  Obligation  to  Transmit 

Messages  in  the  Order  in  Which  they  are  Received. 

163.  Arkansas  Statute  Giving  Penalty. 

164.  How  far  Statutes  Apply  to  Interstate  Messages. 

165.  Validity  of  Statute  Imposing  a  Penalty  where  Dispatch  is  Sent 

to  Another  State. 

166.  No  Action  for  Penalty  for  Non-Delivery  of  Message  Delivered 

to  be  Sent  on  Sunday. 

167.  Exception  where  the  Dispatch  Relates  to  a  Work  of  Necessity. 

168.  Burden  of  Proof  as  to  Necessity. 

169.  Exception  in  Cases  of  Necessity  or  Charity. 

170.  The  Necessity  may  be  a  Moral  or  Social  Necessity. 

171.  The  Necessity  may  be  Created  by  Negligence. 

172.  Retention  of  the  Money  not  a  Ratification  by  the  Telegraph 

Company. 

173.  No  Penalty  for  Refusing  to  Transmit  Obscene  Messages. 

174.  Penalty  for  Refusing  Dispatches  of  Competing  Lines. 

175.  When  Notice  to  the  Company  Necessary. 

176.  When  Payment  of  Actual  Damages  no  Bar  to  Recovery  of  Pen- 

alty. 

177.  Action  for  Penalty  by  Addressee. 

178.  Jurisdiction  of  Such  Actions  :  Justices  of  the  Peace. 


180     PENALTIES    AGAINST   TELEGRAPH    COMPANIES. 

§  1T)7.  General  Obligation  to  Transmit  Messages 
in  the  Order  in  Which  They  are  Received. — The  pub- 
lic duty  of  a  telegraph  company  is  such  that  it  is 
under  the  general  obligation  of  transmitting  any 
message  delivered  to  it  for  that  purpose,  on  the  pay- 
ment or  tender  of  the  usual  charges,  with  reasonable 
diligence,  and  in  the  order  of  time,  with  reference  to 
other  messages,  in  which  it  was  delivered  to  it.1 

§  158.       Statutes    Enforcing   this    Obligation. — The 

legislatures  of  many  of  the  States,  with  the  view  of 
setting  this  question  at  rest,  have  enacted  statutes 
making  it  the  duty  of  the  agents  of  such  companies, 
under  penalties,  to  receive  dispatches  from  and  for 
other  telegraph  companies,  and  from  and  for  any 
person,  and,  on  payment  of  the  usual  charges,  to 
transmit  them  faithfully,  without  unreasonable  de- 
lay, and  (with  certain  exceptions)  in  the  order  in 
which  they  are  received.2    Of  a  statute  of  this  char- 

1  Mackay  v.  Western  Union  Tel.  Co.,  16  Xev.  222. 

2  Ark.  Dig.  Stat.,  Sec.  6419;  Penal  Code  Cal.,  Sec.  638;  Civil  Code 
Cal.,  Sees.  2207,  2208;  Gen.  Stat.  Conn.  1888,  Sec.  3952;  Rev.  Stat.  111. 
1885,  ch.  134,  Sees.  6,  7 ;  Rev.  Stat.  Ind.  1888,  Sec.  4176,  4192a;  McClain's 
Code  Iowa,  Sec.  2106;  Gen.  Stat .  Ky.  1887,  p.  431,  Sec.  10;  Rev.  Stat. 
La.  1876,  Sec.  3761 ;  Md.  Code  1878,  p.  343,  Sec.  136;  Rev.  Stat.  Mo. 
1889,  Sec.  2725;  Rev.  Stat.  Me.  1883,  ch.  53,  Sec.  1 ;  Pub.  Stat.  Mass.,  ch. 
109,  Sec.  10;  Corap.  Laws  Mich.  1882,  Sees.  3706,  3707;  Gen.  Stat.  Nev. 
1885,  Sec.  941 ;  Rev.  Stat.  N.  J.  1877,  p.  1176,  Sec.  12;  3  Rev.  Stat.  N.  Y. 
(8th  Ed.)  p.  2062,2065;  1  Rev.  Stat.  Ohio  (1890),  Sees.  3462,  3465;  2 
Hill's  Ann.  Laws  Oreg.  1887,  Sec.  4176;  2  Bright  Purd.  Pa.  Dig.  1629, 
Sec.  11;  Code  Va.  1887,  Sees.  1291,  1292;  1  Thotnp.  &  Steg.  Teun.  Stat., 
Sees.  1322,  1324;  Rev.  Stat.  Wis.  1878,  Sec.  4557.  By  a  recent  statute  in 
Connecticut,  unjust  discrimination  by  telegraph  or  telephone  companies, 
in  respect  to  furnishing  telegraph  or  telephone  service,  etc.,  is  pro- 
hibited. Pub.  Acts  Conn.  1889,  ch.  160,  p.  87.  A  recent  statute  of 
Georgia  (Ga.  Act  Nov.  12,  1889;  Acts  1S88-89,  p.  175),  applies  only  to 
such  telegraph  companies  as  construct  their  lines  after  the  passage  of 
the  act,  and  does  not  repeal  Ga.  Act  Oct.  22,  1S87  (Ga.  Acts  1886-87,  p. 
Ill),  prescribing  penalties  for  violations  of  its  provisions  as  to  sending 
messages.  Western  Union  Tel.  Co.  v.  Cooledge  (Ga.),  12  S.  E.  Rep. 
264.    The  statute  of  Colorado  (Colo.  Stat.  Act  April  4, 1887;  Laws  1887, 


NOT  TRANSMITTING  MESSAGES  IN  THEIR  ORDER.     181 

acter,  Bigelow,  C.  J.,  said,  in  a  leading  case  :l  "The 
leading  feature  in  this  enactment  is,  that  it  in  effect 
takes  the  business  of  conducting  and  managing  a 
line  of  electric  telegraph,  within  this  commonwealth, 
out  of  the  class  of  ordinary  private  occupations, 
and  makes  it  a  quasi-public  employment,  to  be  car- 
ried on  with  a  view  to  the  general  benefit  and 
for  the  accommodation  of  the  community,  and  not 
merely  for  private  emolument  and  advantage. 
Under  this  provision,  an  owner  or  manager  of 
such  a  line  becomes,  to  a  certain  extent,  a  public 
servant  or  agent."  With  such  a  statute  in  view,  it 
was  also  said  in  a  case  in  Virginia  by  Mr.  Justice 
Lacy:  "It  cannot,  however,  be  claimed  that  the 
obligation  of  a  telegraph  company  to  send  a  message 
grows  entirely  out  of  the  contract  with  the  sender 
in  Virginia;  in  this  State  the  ol ligation  rests  upon 
them  for  the  accurate  transmission  and  faithful  de- 
livery of  messages  under  the  statute,  as  we  have 
seen,  as  it  does  upon  innkeepers,  common  carriers, 
and  the  like,  upon  whom  legal  duties  rest,  resulting 

p.  345),  "to  prevent  discrimination  in  the  sale  or  delivery  of  news 
items,"  etc.,  has  been  repealed.  Colo.  Act  March  30,  1889;  Laws  1889, 
p.  271.  There  are  statutes  of  the  same  kind  as  those  here  considered  in 
Great  Britain.  Stat.  7  &  8  Vict.,  ch.  85,  Sec.  13,  requires  railway  com- 
panies to  allow  the  use  of  electric  telegraphs  established  on  their  lines 
for  the  service  of  the  government,  and  by  section  14  they  are  to  be  open  to 
the  public.  Stat.  26  &  27  Vict.,  ch.  112,  amended  by  29  &  30  Vict.,  ch. 
3,  regulates  the  exercise  of  powers  under  special  acts  for  the  construc- 
tion and  maintenance  of  telegraphs.  A  party  collected  messages  for  a 
telegraph  company,  and  received  a  commission  from  the  company  on 
the  messages  collected.  It  was  held  that  the  commission  could  not  be 
considered  as  a  violation  of  a  provision  in  the  charter  of  the  company 
"for  the  sending  and  receiving  of  messages  by  all  persons  alike  without 
favor  or  preference,  and  subject  to  such  equitable  charges  and  reason- 
able regulations  as  may  from  time  to  time  be  made  by  the  company." 
Reuter  v.  Electric  Telegraph  Co.,  6  El.  &  Bl.  341 ;  s.  c,  2  Jur.  (N.  S.) 
1245;  26  L.  J.  (Q.  B.)  46. 
1  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.),  226,  231. 


182     PENALTIES    AGAINST    TELEGRAPH    COMPANIES. 

from  their  occupation  and  profession,  and  who  owe  a 
duty  to  the  public  irrespective  of  their  engagements 
in  particular  instances.  *  *  *  In  Virginia  a 
telegraph  company  cannot  refuse  to  make  the  con- 
tract with  the  sender  without  violating  a  penal 
statute  of  this  State ;  and  if  they  are  under 
obligations,  which  they  cannot  avoid,  to  send  every 
dispatch  which  is  offered,  how  can  their  obligation 
be  said  to  rest  upon  the  contract  alone  ?  Their 
obligations,  under  the  law  of  this  State,  are  such  that 
they  are  compelled  to  make  the  contract,  and  when 
it  is  made  by  receiving  the  message  and  the  price 
for  its  transmission,  according  to  their  own  regula- 
tions, they  are  under  obligations  to  send  it,  both 
under  their  contract  to  send  it  and  under  the  law 
which  makes  it  their  duty  to  send  it."1 

§    159.      Indiana  Statute    Giving    Penalty    for   Bart 
Faith,    Partiality    or    Discrimination. — A    statute    of 

Indiana,  enacted  in  the  year  1885,  prescribes  cer- 
tain duties  of  telegraph  companies,  prohibits  dis- 
crimination in  the  transmission  of  messages,  and 
imposes  a  penalty  for  the  violation  of  its  provisions, 
in  the  following  language:  "Every  telegraph  com- 
pany with  a  line  of  wires  wholly  or  partly  within 
this  State,  and  engaged  in  doing  a  general  tele- 
graphic business,  shall,  during  the  usual  office 
hours,  receive  dispatches,  whether  from  other  tele- 
graph lines  or  other  companies,  or  individuals,  and 
shall,  upon  the  usual  terms,  transmit  the  same  with 
impartiality  and  good  faith,  and  in  the  order  of 
time  in  which  they  are  received,  and  shall  in  no 
manner  discriminate  in  rates  charged,  or  words  or 


1  Western  Union  Tel.  Co.  v.  Reynolds,  77  Va.  173;  s.  c,  46  Am.  Rep. 
715. 


FOR  BAD  FAITH,  PARTIALITY,  DISCRIMINATION.     183 

figures  charged  for,  or  manner  or  conditions  of 
service  between  any  of  its  patrons,  but  shall  serve 
individuals,  corporations,  and  other  telegraphic  com- 
panies with  impartiality  :  provided,  however,  that 
arrangements  may  be  made  with  the  publishers  of 
newspapers  for  transmission  of  intelligence  of  gen- 
eral public  interest  out  of  its  order,  and  that  com- 
munication for  and  from  officers  of  justice  shall  take 
precedence  of  all  others."1  This  statute  extends 
only  to  acts  or  omissions  involving  partiality  or  bad 
faith,  and  under  it  there  can  be  no  recovery  for 
mere  negligence.2 

§    160.      Missouri    Statute     Giving     a     Penalty. — A 

1  Ind.  Act  April  S,  18S5,  §  1 ;  Ind.  Laws  18S5,  p.  151.  The  second 
section  contains  a  somewhat  similar  provision  with  reference  to  tele- 
phone companies;  and  the  third  section  imposes  a  penalty  of  one  hun- 
dred dollars  for  a  violation  of  any  of  the  provisions  of  the  act,  and 
provides  that  the  act  shall  not  be  construed  as  taking  away  the  pre- 
ventive remedy  in  equity  by  injunction  or  otherwise. 

2  Western  Union  Tel.  Co.  v.  Steele,  108  Ind.  163 ;  s.  c,  9  N.  E.  Rep.  78 ;  6 
West.  Rep.  410 ;  Western  Union  Tel.  Co.  v.  Swain,  109  Ind.  405 ;s.c.,9N. 
E.  Rep.  927;  7  West.  Rep.  531;  Western  Union  Tel.  Co.  v.  Jones,  116 
Ind.  361;  s.  c,  18  N.  E.  Rep.  529.  This  act  repeals  by  implication 
§  4176  of  the  Revised  statutes  of  1881  (Western  Union  Tel.  Co.  v. 
Brown,  108  Ind.  53S;  Western  Union  Tel.  Co.  v.  Steele,  lb.  163) ;  but  it 
does  not  repeal  §  4178  of  the  Statutes  of  1881,  which  requires  telegraph 
companies  to  deliver,  by  messenger,  all  dispatches  to  the  persons  to 
whom  they  are  addressed,  "provided  such  persons  *  *  *  reside 
within  one  mile  of  the  telegraphic  station,  or  within  the  city  or  town 
in  which  such  station  is."  Reese  v.  Western  Union  Tel.  Co.,  123  Ind. 
294;  s.  a,  24  N.  E.  Rep.  163.  The  office  of  this  repealed  statute  is 
well  illustrated  by  a  case  where  the  defendant  had  two  telegraph  offices 
in  a  town,  about  eighty  yards  apart,  one  on  a  direct  line  to  B.,  the 
other  on  a  line  over  which  a  message  to  B.  required  several  repetitions. 
The  plaintiff  presented  a  message  for  B.  at  the  latter  office,  which  was 
refused,  on  the  ground  that  the  other  office  had  the  direct  line;  but  an 
offer  was  made  to  send  it  immediately  to  the  other  office.  This  offer 
the  plaintiff  refused,  and  took  the  message  himself  to  the  other  office, 
whence  it  was  promptly  sent.  It  was  held,  that  defendant's  refusal  did 
not  entitle  plaintiff  to  recover  a  penalty  imposed  for  failure  to  transmit 
a  message.  Ind.  Rev.  St.  1881,  §  4176;  Western  Union  Tel.  Co.  v.  Wil- 
son, 108  Ind.  308;  s.  c,  9  N.  E.  Rep.  172;  6  West.  Rep.  547. 


184     PENALTIES    AGAINST   TELEGRAPH    COMPANIES. 

statute  of  Missouri  is  as  follows  :  "It  shall  be  the 
duty  of  every  telegraph  or  telephone  company,  in- 
corporated or  unincorporated,  operating  any  tele- 
phone or  telegraph  line  in  this  State,  to  provide 
sufficient  facilities  at  all  its  offices  for  the  dispatch 
of  the  business  of  the  public,  to  receive  dispatches 
from  and  for  other  telephone  or  telegraph  lines,  and 
from  or  for  any  individual,  and  on  payment  or 
tender  of  their  usual  charges  for  transmitting  dis- 
patches, as  established  by  the  rules  and  regulations 
of  such  telephone  or  telegraph  line,  to  transmit  the 
same  promptly  and  with  impartiality  and  good 
faith,  under  a  penalty  of  two  hundred  dollars  for 
every  neglect  or  refusal  so  to  do,  to  be  recovered, 
with  costs  of  suit,  by  civil  action,  by  the  person  or 
persons  sending  or  desiring  to  send  such  dispatch, 
one-half  of  the  amount  recovered  to  be  retained  by 
the  plaintiff,  and  one-half  to  be  paid  into  the  county 
public  school  fund  of  the  county  in  which  the  suit 
was  instituted;  and  the  burden  of  proof  shall  be  upon 
the  company  to  show  that  the  wire  was  engaged  as 
the  reason  for  the  delay  in  transmitting  such  dis- 
patch." Under  this  statute  a  telegraph  company 
operating  a  telegraphic  line  in  this  State  is  liable 
for  the  prescribed  penalty  of  one  hundred  dollars 
for  the  failure  to  transmit  a  message,  received  by  it 
with  payment  of  its  charges  therefor  ;  it  is  not  neces- 
sary that  the  failure  shall  be  due  to  partiality  or 
bad  faith  on  its  part ;  it  may  be  the  result  of  mere 
negligence.2     The  court  say  : 

•  •  We  rather  think  that  the  duty  stated  in  the  clause  of  the 
statute  above  quoted  must  be  understood  as  being  a  condensed 


1  Rev.  St.  1889,  §  2725. 

2  Burnett  v.  Western  Union  Tel.  Co.,  39  Mo.  App.  599. 


FOR  BAD  FAITH,   PARTIALITY,   NEGLIGENCE.        185 

statement  of  a  three-fold  duty:  First,  to  transmit  messages 
tendered  for  that  purpose  with  the  charges  established  by  the 
company's  rules  and  regulations.  Second,  to  transmit  such  mes- 
sages with  impartiality.  Third,  to  transmit  such  messages  with 
good  faith.  We  also  think  that  the  word  'neglect'  in  the  suc- 
ceeding clause,  which  reads,  'under  a  penalty  of  one  hundred 
dollars  for  every  neglect  or  refusal  so  to  do,'  is  to  be  construed 
as  meaning  neglect  to  perform  either  of  these  three  duties.  The 
defendant's  view  woidd  fritter  the  statute  away,  and  render  it 
entirely  useless  in  every  case  where  the  dispatch  is  received  and 
the  customary  charges  collected,  and  the  dispatch  is  not  sent  at 
all,  as  in  the  case  at  bar.  How,  in  the  nature  of  things,  could 
the  sender  of  the  dispatch  prove,  beyond  the  inference  that  would 
arise  from  the  mere  failure  to  transmit,  that  the  company  had 
been  guilty  of  partiality  and  bad  faith?  How  could  he  get  out  of 
the  employees  of  the  defendant,  who  alone  would  have  knowledge 
of  the  real  reason  of  the  failure  to  transmit  the  dispatch,  evidence 
which  would  convict  them  of  so  gross  a  violation  of  duty  ?  Under 
such  a  view  of  the  statute,  the  agent  of  the  telegraph  company 
could  receive  the  dispatch,  and  throw  it  into  the  waste  basket,  or 
into  the  fire,  the  moment  the  sender's  back  was  turned,  and  the 
latter  could  never  recover  the  penalty  denounced  by  the  statute. 
This  would  cut  the  statute  down  so  as  to  make  it  mean  that  the 
penalty  could  be  recovered  only  in  cases  where  the  dispatch  was 
in  fact  transmitted,  but  where  it  was  not  transmitted  with  impar- 
tiality, that  is,  where  other  dispatches  received  later  had  been 
sent  before  it ;  or  where  it  had  not  been  transmitted  in  good 
faith,  that  is.  where  the  agents  of  the  company  had  corruptly  de- 
layed sending  it  to  effect  some  purpose  that  might  be  imagined. 
We  think  that  this  would  be  a  partial  judicial  repeal  of  the  stat- 
ute.1 

A  similar  construction  was  put  by  the  Supreme 
Court  of  Indiana  upon  the  early  statute  of  that 
State,  which  required  telegraph  companies,  under  a 
penalty,  to  transmit  dispatches  "with  impartiality 
and  good  faith,  and  in  the  order  of  time  in  which 
they  are  received,  under  penalty  in  case  of  failure 
'to  transmit  or  if  postponed  out  of  such  order,  of 

1  Burnett  v.  Western  Union  Tel.  Co.,  39  Mo.  App.  599,  G07. 


186     PENALTIES    AGAINST    TELEGRAPH    COMPANIES. 

one  hundred  dollars,  to  be  recovered  by  the  person 
whose  dispatch  is  neglected  or  postponed.'  M1 

§  161.      Not  Liquidated    Damages,  but  a  Penalty. — 

The  Indiana  statute  of  1885,  already  cited,2  does  not 
award  liquidated  damages  for  failing  to  perform  the 
duty  enjoined,  but  awards  a  penalty.  "All  our  de- 
cisions," said  Elliott,  J.,  "affirm  that  the  award  is 
a  penalty  given  b}?"  the  statute  to  a  private  individ- 
ual."3 

§  162.  Jury  how  Instructed  as  to  Statutory  Obliga- 
tion to  Transmit  Messages  in  the  Order  in  Which  They 
are  Received. — Under  the  statute  of  Indiana,  else- 
where referred  to,  which,  though  now  repealed  by 
implication,4  remains  a  type  of  many  still  existing 
in  other  States,5  a  case  arose  in  which  it  was  proved 
that  the  plaintiff  delivered  to  the  agent  of  the  de- 
fendant a  message  in  the  words,  "Come  on  the  night 
train  without  fail  to  testify  on  behalf  of,"  etc.,  and 
explained  to  the  agent  the  meaning  and  importance 
of  the  message,  informing  him  that  it  was  necessary 
for  the  person  addressed  to  come  on  the  night  train 
in  order  to  be  present  as  witness  the  following  day 

1  Western  Union  Tel.  Co.  v.  Buchanan,  35  Ind.  429;  s.  C,  9  Am. 
Rep.  744. 

2  Ante.  §  159,  codified  in  Rev.  Stat.  Ind.  18S8,  Sees.  4176,  4176a. 

3  Western  Union  Tel.  Co.  v.  Pendleton,  95  Ind.  12;  s.  C,  4S  Am.  Rep. 
692;  citing  Carnahan  v.  Western  Union  Tel.  Co.,  89  Ind.  526;  Western 
Union  Tel.  Co.  v.  Adams,  87  Ind.  598;  S.  C,  44  Am.  Rep.  776;  Western 
Union  Tel.  Co.  v.  Gougar,  S4  Ind.  176;  Rogers  v.  Western  Union  Tel. 
Co.,  78  Ind.  109;  s.  c,  41  Am.  Rep.  558;  Western  Union  Tel.  Co.  v.  Ax- 
tell,  69  Ind.  199;  Western  Union  Tel.  Co.  v.  Lindley,  62  Ind.  371; 
Western  Union  Tel.  Co.  v.  Ferguson,  57  Ind.  495;  Western  Union  Tel. 
Co.  v.  Hamilton,  50  Ind.  181;  Western  Union  Tel.  Co.  v.  Buchanan,  35 
Ind.  429;  s.  c,  9  Am.  Rep.  744;  Western  Union  Tel.  Co.  v.  Ward,  23 
Ind.  377.  See  a  learned  note  on  such  statutes  by  Mr.  Desty,  3  L.  R.  A. 
•224:  also  Burnett  v.  Western  Union  Tel.  Co.,  39  Mo.  App.  599,  605. 

4  Ante,  §  159,  note. 

5  -^ee,  for  example,  ante,  §  160. 


NOT  TRANSMITTING  IN  THE  ORDER  RECEIVED.       187 

at  a  judicial  examination.  The  message  was  not 
transmitted  by  the  company  until  the  following  day. 
The  following  instruction  given  by  the  trial  court 
expounding  the  statute  was  approved  on  appeal: 
"This  is  an  action  to  recover  a  penalty  of  one  hun- 
dred dollars  for  an  alleged  failure  to  transmit  the 
message  in  the  complaint  specified  by  the  defend- 
ants. The  law  requires  of  the  defendant,  where 
the  agents  of  the  telegraph  company,  in  their  proper 
office,  receive  messages,  to  transmit  the  same  with 
impartiality  and  good  faith,  and  in  the  order  of 
time  in  which  they  are  received;  and  a  failure  to 
comply  with  this  requisition  makes  the  company 
liable  to  the  person  whose  dispatch  is  neglected  or 
postponed.  Private  dispatches  must  give  way,  how- 
ever, to  transmission  of  intelligence  of  general  and 
public  interest;  to  communications  for  and  from 
officers  of  justice.  If  you  shall  believe  from  the  evi- 
dence that  the  plaintiff,  acting  as  the  attorney  of 
Bixler  and  Iddings,  went  to  the  office  of  the  Western 
Union  Telegraph  Company,  at  Indianapolis,  with 
the  message  in  the  complaint  specified,  and  inquired 
of  the  agent  if  the  same  could  be  sent  immediately 
to  Lafayette,  and  was  informed  that  it  could  be  im- 
mediately, and  the  plaintiff  paid  the  charges  de- 
manded of  him  by  such  agent,  and  the  sending  of 
the  message  was  postponed  until  the  next  morning, 
to  an  hour  when  it  was  too  late  for  the  message  to 
be  of  any  service,  the  plaintiff  would  be  entitled  to 
recover  the  penalty  of  one  hundred  dollars,  unless 
the  company  has  shown  that,  after  receiving  the 
message,  the  same  could  not  be  sent  by  reason  of 
some  derangement  of  the  wires,  or  that  the  dispatch 
was  postponed  in  consequence  of  the  transmission 


188     PENALTIES    AC4AINST   TELEGRAPH    COMPANIES. 

of  intelligence  of  general  and  public  interest,  or  com- 
munications for  and  from  officers  of  justice."1  It 
will  be  perceived  that  this  construction  casts  upon 
the  company  the  onus  of  showing  that  the  failure  to 
transmit  the  message  was  due  to  unavoidable  causes. 
Such  a  statute,  as  thus  construed,  is  therefore  a 
wholesome  corrective  of  the  blunder  into  which 
some  of  the  courts  have  fallen,  of  holding  that  a 
stipulation  requiring  messages  to  be  repeated  at 
extra  cost  casts  upon  the  sender  the  burden  of  prov- 
ing, by  otlu  r  evidence  than  the  fact  of  the  mistake  or 
other  default,  that  the  company  was  negligent.2 

§  163.  Arkansas  Statute  Giving-  Penalty. — In  like 
manner,  a  statute  of  Arkansas  of  1885,3  declaring 
that  telegraph  companies  shall,  under  a  penalty  for 
refusal,  transmit  all  messages  without  discrimina- 
tion as  to  charges  or  promptness,  does  not  create  a 
liability  for  negligence  in  transmission,  where  there 
is  a  bona  fide  effort  to  transmit.4  Under  a  well- 
known  rule  relating  to  the  construction  of  penal 
statutes,  this  statute  is  construed  strictly,  as  is  the 
case  with  the  Indiana  statute  just  referred  to  ;  and, 
as  it  does  not  in  terms  give  an  action  for  a  mere 
failure  to  transmit  or  deliver,  it  is  held  that  the 
party  suffering  by  such  a  failure  is  remitted  to  his 
action  for  damages  at  common  law.5  But  as  the 
party,  when  he  seeks  his  remedy  at  common  law  is 
encountered    with    the   rule   that   the   stipulations 

1  Western  Union  Tel.  Co.  v.  Ward,  23  Ind.  377;  s.  c,  85  Am.  Dec. 
462.    Compare  Bryant  v.  American  Tel.  Co.,  1  Daly  (N.  Y.),  575. 

2  Post,  §§  221.  222. 

3  Ark.  Stat.  March  31,  1S85.  Sec.  10. 

*  Frauenthal  v.  Western  Union  Tel.  Co.,  50  Ark.  78;  s.  c,  21  Am.  & 
Eng.  Corp.  Cas.  70;  6  S.  W.  Rep.  236. 

5  Frauenthal  v.  Western  Union  Tel.  Co.,  supra;  Baltimore,  etc.  Tel. 
Co.  v.  State,  6  S.  W.  Rep.  513. 


INTERSTATE    MESSAGES.  189 

against  liability  which  the  company  has  imposed 
upon  him  are  reasonable,  unless  the  message  is 
repeated  at  extra  delay  and  expense,1  and  that  the 
mere  fact  of  the  failure  to  deliver,  does  not,  unless 
the  message  has  been  repeated,  make  out  a  case  for 
damages,  but  imposes  upon  him  the  impossible  con- 
dition of  showing  by  other  evidence  that  the  com- 
pany has  been  negligent, — it  may  well  be  doubted 
whether  the  courts  of  Indiana  and  Arkansas  have 
not  in  both  cases  frittered  away  the  protection  to  the 
public  which  the  legislature  intended. 

§  164.  How  far  Statutes  Apply  to  Interstate  Mes- 
sages.— Penal  statutes,  as  is  well  known,  can  have 
no  extraterritorial  force.  A  penal  statute  enacted 
by  a  State,  which  should  undertake  to  punish  de- 
faults in  the  transmission  of  telegraphic  dispatches 
over  interstate  lines,  would  no  doubt  be  held  void, 
as  being  an  attempt  to  regulate  commerce  be- 
tween the  States,  and  therefore  infringing  that  clause 
of  the  Constitution  of  the  United  States  which  com- 
mits the  regulation  of  interstate  commerce  to  Con- 
gress. The  just  view  has  therefore  been  taken  that 
a  statute2  imposing  a  penalty  upon  telegraph  com- 
panies for  failure  to  transmit  and  deliver  messages, 
does  not  apply  to  a  message  sent  from  another  State 
to  a  place  within  the  State.3  But  in  the  view  of  the 
same  court  the  rule  does  not  apply  to  cases  where 
the  message  was  delivered  to  a  telegraph  company 
in   Indiana  for  transmission  to  a  place  in  another 


1  Post,  §  221. 

2  Here  Sec.  4176  of  the  Revised  Statutes  of  Indiana  of  1881  (since  re- 
pealed by  implication,  as  already  seen). 

'■'  Rogers  v.  Western  Uuion  Tel.  Co.,  122  Ind.  395;  s.  c,  24  N.  E.  Rep. 
157;  Carnahan  v.  Western  Union  Tel.  Co.,*89  Ind.  52ti;  Western  Union 
Tel.  Oo.v.  Reed,  OG  Ind.  195. 


190     PENALTIES    AGAINST    TELEGRAPH    COMPANIES. 

State — in  which  case  the  court  held  that  the  fact 
that  the  act  of  negligence  which  prevented  themes- 
sage  from  reaching  its  destination  occurred  out  of 
the  former  State,  will  not  defeat  a  recovery  in  that 
State.1 

§     165.       Validity     of    Statute   Imposing:    a    Penalty 
where    Dispatch    is  Sent    to   Another    State.  —  It    has 

been  held  by  the  same  court  that-a  statute  imposing 
a  penalty  on  a  telegraph  company  for  failure  to 
transmit  a  message  is  not  unconstitutional,  even  as 
to  a  message  addressed  to  a  person  in  another  State, 
and  that  the  sender  may  recover  the  penalty.  The 
court  hold  that  the  statute  in  such  a  relation  is  not 
an  invasion  of  the  exclusive  power  of  Congress  to 
regulate  commerce  among  the  several  States.  "The 
statute,"  said  Elliott,  J.,  "operates  in  favor  of 
the  sender  of  the  message  delivered  at  an  office  in 
this  State,  and  upon  a  corporation  represented 
within  our  borders  by  its  agents  and  officers.  The 
parties  are  therefore  within  our  jurisdiction.  The 
duty  which  the  statute  assumes  to  enforce  is  one 
arising  in  Indiana,  for  it  grows  out  of  and  is  founded 
upon  an  undertaking  entered  into  in  this  State.  The 
parties  and  subject-matter  being  within  our  juris- 
diction, they  are  subject  to  our  laws.  Persons  and 
property  within  the  jurisdiction  of  a  State  are  sub- 
ject to  the  laws  of  that  State.  The  duty  which  the 
statute  seeks  to  enforce  is  owing  here  in  Indiana, 
and  not  elsewhere  ;  it  was  here  that  the  contract 
was  made  which  imposed  the  duty  on  the  telegraph 

1  Western  Union  Tel.  Co.  v.  Hamilton,  50  Ind.  181.  See  also  Western 
Union  Tel.  Co.  v.  Fenton,  52  Ind.  1.  These  decisions  were  under  the 
former  statute  of  Indiana,  under  which  it  was  held  that  there  could  be 
a  recovery  of  the  penalty,  although  the  default  occurred  through  negli- 
gence merely.    See  ante,  §  159,  note. 


INTEKSTATE    MESSAGES.  191 

company,  and  it  was  here  that  the  failure  occurred, 
for  the  message  was  not  transmitted,  as  the  law 
commands,  in  good  faith  and  with  diligence  and 
impartiality.  The  duty  which  the  company  failed 
to  perform  was  not  a  duty  owing  in  Iowa,  but  was 
a  duty  owing  in  Indiana,  where  the  parties  executed 
the  contract  out  of  which  the  dut}'  arose.  The  duty 
of  the  company  did  not  end  at  the  State  line  ;  it  ex- 
tended throughout  the  whole  scope  of  the  under- 
taking, and  required  the  message  to  be  transmitted 
and  delivered,  in  good  faith  and  with  reasonable 
diligence,  to  the  person  to  whom  it  was  sent.  The 
breach  of  duty,  no  matter  where  the  specific  act 
constituting  it  occurred,  was  a  breach  here  and  not 
elsewhere.  The  duty  is  a  general  and  continuous  one, 
and  if  not  performed,  the  failure  to  perform,  irre- 
spective of  the  place  where  the  failure  occurred,  is 
a  breach  of  the  duty  at  the  place  of  its  creation. 
There  is  not  the  slightest  resemblance  between  such 
a  case  as  this  and  cases  of  distinct  and  independent 
wrongs  occurring  wholly  beyond  the  limits  of  the 
State  ;  nor  is  there  the  remotest  analogy  between 
such  a  case  as  the  present  and  the  case  of  an  attempt 
to  enforce  in  one  jurisdiction  the  laws  of  another 
State  or  nation.  There  is  here  no  attempt  to  en- 
force the  law  of  another  State,  nor  to  enforce  a 
penalty  for  a  breach  of  a  duty  created  by  a  foreign 
statute.  The  action  is  in  an  Indiana  forum  to  en- 
force a  duty  created  by  an  Indiana  statute,  and 
arising  out  of  an  Indiana  contract  made  by  parties 
within  the  State."1 

1  Western  Union  Tel.  Co.  v.  Pendleton,  95  Ind.  12;  s.  c,  48  Am.Kep. 
692;  reaffirming  Western  Union  Tel.  Co.  v.  Hamilton,  50  Ind.  181; 
Western  Union  Tel.  Co.  v.  Lindley,  62  Ind.  371 ;  Carnahan  v.  Western 
Union  Tel.  Co..  89  Ind.  526. 


192     PENALTIES    AGAINST    TELEGRAPH    COMPANIES. 

6  166.      No  Action  for  Penalty    for    Non-Delivery  of 
Message  Delivered  to  be  Sent  on  Sunday. — 111  Indiana, 

where  it  is  ruled  that  contracts  made  on  the  first  day 
of  the  week,  commonly  called  Sunday,  are  void  and 
incapable  of  enforcement,  not  by  the  common  law 
of  the  State,  but  by  statute,1  it  has  been  held 
that  an  action  cannot  be  maintained  against  a  tele- 
graph company  to  recover  a  statutory  penalty  for 
failing  to  transmit  and  deliver  a  message  which  was 
placed  in  the  hands  of  the  company  on  Sunday,  and 
the  contract  for  the  transmission  of  which  was  made 
on  that  day,  the  dispatch  not  relating  to  a  ivorlc  of 
necessity.2  So,  in  Missouri,  the  penalties  given  by  a 
statute,  against  a  telegraph  company  for  failing  to 
inform  one  who  sends  a  dispatch  for  transmission, 
when  required  by  him,  that  the  line  is  not  in  work- 
ing order,  or  that  dispatches  already  on  hand  for 
transmission  will  occupy  the  time,  or  for  intention- 
ally giving  false  information  to  him  in  relation  to 
the  time  within  which  the  dispatch  may  be  sent,3 
are  not  recoverable,  where  the  company  has  neglected 


1  Reynolds  v.  Stevenson,  4  Ind.  619;  Banks  v.  Werts,  13  Ind.  203; 
Love  v.  Wells,  25  Ind.  503;  Davis  v.  Barger,  57  Ind.  54;  Gilbert  v. 
Vashon,  69  Ind.  372 ;  Parker  v.  Pitts,  73  Ind.  597;  s.  c,  38  Am.  Rep. 
155;  Mueller  v.  State,  76  Ind.  310;  s.  c,  40  Am.  Rep.  245.  In  one  of 
these  cases  it  was  held  that  a  replevin  bond  executed  on  Sunday  was  in- 
valid. Link  v.  Clemens,  7  Blackf.  (Ind.)  480.  In  another  case  the 
same  pious  regard  for  the  Lord's  day  induced  the  court  to  hold  that  a 
subscription  to  a  church  made  on  Sunday  was  void — the  end  even  here  not 
justifying  the  means,  or  rather  the  time.  Catlet  v.  Trustees,  62  Ind. 
365;  s.  c,  30  Am.  Rep.  197.  Nay,  this  wicked  contract  was  not  even 
rendered  valid  by  a  subsequent  oral  promise  to  pay  the  subscription,  the 
same  having  been  given  without  consideration.  Ibid.  But  see  Evansville 
v.  Morris,  87  Ind.  269,  overruling  Davis  v.  Barger,  57  Ind.  54,  and  cases 
following  it. 

2  Rogers  v.  Western  Union  Tel.  Co.,  78  Ind.  169;  s.  c,  41  Am.  Rep. 
558. 

3  Such  as  Rev.  Stat.  Mo.  1879,  §  885. 


SUNDAY    MESSAGES.  193 

or  refused  to  transmit  an  ordinary  business  dispatch 
on  Sunday,  there  being  a  general  statute  of  the 
State1  prohibiting  work  and  labor  on  Sunday,  except 
works  of  necessity  or  charity.2 

§  167.  Exception  where  the  Dispatch  Relates  to  a 
Work  of  Necessity. — But  if  the  dispatch,  on  its  face, 
shows  that  it  relates  to  a  "  work  of  necessity,"  or  if 
the  company  were  clearly  apprised  that  such  was  its 
character,  the  rule  might  be  different.  Such  would 
seem  to  be  the  intimation  in  the  Indiana  case  quoted 
in  the  preceding  section.3  But  it  is  said  that '  'courts 
cannot  declare,  as  a  matter  of  law,  that  the  business 
of  telegraphy  is  a  work  of  necessity.  There  are 
doubtless  many  cases  in  which  the  sending  and  de- 
livery of  a  message  would  be  a  work  of  necessity 
within  the  meaning  of  our  statute.  But  we  cannot 
judicially  declare  that  all  contracts  for  the  trans- 
mission of  telegraphic  messages  are  to  be  deemed 
within  the  statutory  exception.  Whether  a  contract 
is  within  the  exception  must  be  determined,  as  a 
question  of  fact,  from  the  evidence  in  each  particu- 
lar case."4  A  message  which,  on  its  face,  relates 
to  mere  secular  business,  such  as  a  message  reading  : 
"Bring  $40  if  you  want  record," — does  not,  without 
a  showing  of  extrinsic  facts  tending  to  vary  its  ap- 
parent import,  show  necessity.5    So,  under  a  statute 


1  Rev.  Stat.  Mo.  1S79,  §  1578. 

2  Thompson  v.  Western  Union  Tel.  Co.,  32  Mo.  App.  191. 

3  Rogers  v.  Western  Union  Tel.  Co.,  7S  Ind.  169;  s.  C,  41  Am.  Rep. 
558. 

4  lbkl.;  opinion  by  Elliott,  C.  J. 

5  Western  Union  Tel.  Co.  v.  Yopsc,  118  Ind.  248;  S.  C,  20  N.  E.  Rep.  222 ; 
21  Am.  &  Eng.  Corp.  Cas.  88;  25  Id.  514;  3  Lawy.  Rep.  Ann.  224.  In 
this  case  it  appeared  that  the  plaintiff,  a  stenographer,  was  ordered  to 
copy  certain  evidence  taken  at  the  trial,  80  that  counsel  might  prepare 

(13) 


194     PENALTIES    AGAINST    TELEGRAPH    COMPANIES. 

giving  a  penalty  against  a  telegraph  company  for 
failure  to  transmit  and  deliver  messages,  it  has  been 
held  that  the  penalty  cannot  be  recovered  for  the 
failure  of  the  company  to  transmit  and  deliver  a 
message  inviting  the  person  addressed  to  pay  a  visit 
to  the  sender,  in  the  following  language  :  "  Come 
up  in  the  morning — bring  all," — such  a  dispatch 
not  being  a  work  of  necessity  within  the  statute  of 
Indiana  prohibiting  work  and  labor  on  Sunday."1 
In  another  case  it  has  been  said  that  "ordinary 
business  "  is  not  a  work  of  necessity  ;2  but  it  is  obvi- 
ous that  this  may  or  may  not  be  so,  according  to 
circumstances. 

§  168.  Burden  of  Proof  as  to  Necessity. — The  bur- 
den of  proof  as  to  a  necessity  for  sending  a  telegram 
on  Sunday,  in  an  action  to  recover  a  penalty  for 
failure  to  transmit  it,  is  upon  the  plaintiff.3 

§  169.  Exception  in  Cases  of  Necessity  or  Charity. 
— Under  the  statute  of  Missouri  prohibiting  work 
on  Sunday,  it  is  no  defense  that  the  message  was 
delivered  to  the  telegraph  company  on  a  Sunday 
for  transmission,  when  the  sending  of  it  is  an  act  of 
necessity  or  of  charity  ;  and  the  sending  of  it  is  such 
an  act,  when  it  is  sent  from  a  husband  to  his  wife, 
and  its  purpose  is  to  explain  a  protracted   absence 

his  bill  of  exceptions  for  the  judge's  signature  within  GO  days  from  Jan- 
uary 20th.  The  copy  was  finished,  and  the  message  for  the  attorney  was 
delivered  to  defendant  on  Sunday,  March  ISth.  The  judge  was  then  hold- 
ing court  in  a  county  other  than  that  of  the  attorney's  residence.  The 
copy  was  made  with  all  possible  dispatch,  but  the  plaintiff  knew  on  the 
day  before,  that  he  would  finish  it  on  Sunday.  It  appeared  that  the  at- 
torney got  his  copy,  and  had  his  bill  signed.  This  was  held  insufficient 
to  show  a  necessity  for  sending  the  message  on  Sunday. 

1  Rogers  v.  Western  Union  Tel.  Co.,  78  Iud.  169;  s.   c,  41   Am.  Rep. 
558. 

2  Thompson  v.  Western  Union  Tel.  Co.,  32  Mo.  App.  191. 

Western  Union  Tel.  Co.  v.  Yopst,  118  Ind.  24S;  s.  c.,3  L.R.  A.  224; 
20  N.  E.  Rep.  222. 


SUNDAY    MESSAGES.  195 

of  the  former  from  home,  and  to  announce  the  time 
of  his  return.  The  court  discussed  at  some  length 
the  meaning  of  the  word  "  charity,"  and  concluded 
by  saying  :  "  The  word,  as  used  in  the  statute,  is 
intended  to  be  understood  in  its  ordinary  sense, 
and  to  denote  something  more  than  mere  alms- 
giving ;  and  it  is  plain  that  an  act,  intended  by  a 
husband  to  allay  anxiety  and  distress  of  mind  on 
the  part  of  his  wife  and  children,  may  be  performed 
on  Sunday  as  a  work  of  charity,  without  violating 
the  statute  above  quoted."  * 

§  170.  The  Necessity  may  be  a  Moral  or  Social 
Necessity. — In  the  same  case  the  court  say  :  "  Then, 
as  to  the  view  which  the  trial  court  took,  that  the 
necessity  which  will  authorize  the  doing  of  work  on 
Sunday  '  may  be  a  necessity  arising  from  inadvert- 
ence on  the  part  of  the  person  pleading  the  neces- 
sity, but  not  from  willfulness,'  we  think  that  that 
is  the  correct  view.  We  also  think  that  the  court 
rightfully  refused  the  instruction  tendered  by  the 
defendant,  that  '  if  the  plaintiff  neglected  to  send  a 
similar  dispatch  or  similar  information  on  the  pre- 
ceding day,  and,  by  such  neglect  on  his  part, 
created  the  necessity  for  sending  it  on  Sunday,  he 
cannot  recover.'  We  must  here  recur  to  the  view 
that  the  necessity  is  not  a  physical,  but  a  moral  ne- 
cessity. If  a  husband  absents  himself  from  his  wife 
and  family  beyond  the  promised  length  of  time, 
and  neglects  on  Saturday  to  send  them  information 
of  his  whereabouts  and  the  time  of  his  return,  he  is 
clearly  under  the  moral  duty  of  sending  such  infor- 
mation on  Sunday,  and  this  moral  duty  which  he 
owes  to  them  creates  a  necessity  within  the  mean- 

1  Burnett  v.  Western  Union  Tel.  Co.,  39  Mo.  App.  599,  614. 


196     PENALTIES    AGAINST    TELEGRAPH    COMPANIES. 

Lng  of  the  statute."1  The  same  court,  in  a  subse- 
quent case,  reaffirmed  this  principle,  and  applied  it 
to  a  state  of  facts  where  a  young  gentleman  had 
started  on  Sunday  to  make  a  visit  to  a  young  lady 
in  a  distant  city,  had  gone  into  a  restaurant  to  get 
some  refreshments,  and  in  consequence  of  this  got 
left  by  the  railway  train.  The  court  reasoned  that 
there  was  such  a  thing  as  a  social  as  well  as  a  moral 
or  physical  necessity,  and  that  whatever  right- 
thinking  men  would  feel  it  incumbent  upon  them- 
selves to  do  under  given  circumstances,  may  be 
regarded  as  a  necessity  within  the  meaning  of  the 
statute.2 

§  171.  The  Necessity  may  be  Created  by  Negli- 
gence.— The  delivery  of  such  a  telegram  for  transmis- 
sion on  a  Sunday  is  not  rendered  illegal  by  the  fact 
that  the  sender  could  as  well  have  sent  it  on  the 
preceding  Saturday,  but  through  inadvertence  failed 
so  to  do.  In  so  holding,  the  court  say  :  "  The  duty 
and  the  necessity  exist,  although  the  circumstances 
creating  them  may  have  been  the  result  of  his  pre- 
vious negligence.  But  even  if  the  plaintiff's  negli- 
gence may  have  created  this  necessity,  we  do  not 
see  how  such  negligence  could  be  regarded  as  render- 
ing it  improper  for  him  to  perform  the  duty,  and 
for  the  defendant  to  assist  him  in  its  performance, 
if  it  was  a  work  of  charity.  Can  any  one  say  that  a 
man's  negligence  on  Saturday  to  perform  a  work  of 
charity  will  render  it  the  less  obligatory  upon  him 
to  perform  it  on  Sunday  ?  "  3 

1  Burnett  v.  Western  Union  Tel.  Co.,  39  Mo.  App.  599,  614. 

2Bassett.  v.  Western  Union  Tel.  Co.,  No.  48S4,  St.  Louis  Ct.  of  Ap- 
peals, not  yet  reported. 

3  Burnett  v.  Western  Union  Tel.  Co.,  39  Mo.  App.  599,  614;  reaffirmed 
in  Bussett  v.  UVstern  Union  Tel.  Co.,  St.  Louis  Ct.  of  Appeals,  No. 
4884,  not  yet  reported. 


SUNDAY    MESSAGES COMPETING    LINES.  197 

§  172.  Retention  of  the  Money  not  a  Ratification 
by  Telegraph  Company. — A  pious  tenderness  for  the 
sanctity  of  the  Lord's  day,  although  it  may  result  in 
enabling  a  corporation  to  act  dishonestly  towards  its 
customers,  has  led  to  the  conclusion  that  the  fact  that 
the  telegraph  compan}^  retains  the  money  paid  for 
the  transmission  of  the  dispatch  after  the  expiration 
of  the  Lord's  day,  that  is,  keeps  it  on  Monday  and 
on  following  days, — does  not  amount  to  a  ratification 
of  its  undertaking,  so  as  to  entitle  the  plaintiff  to 
enforce  his  statutory  right  to  a  penalty  for  failing 
to  transmit  and  deliver  it.1 

§  173.  No  Penalty  for  Refusing-  to  Transmit  Ob- 
scene Messages.  —  A  telegraph  company  will  be 
excused  from  the  transmission  of  a  message  expressed 
in  indecent,  obscene,  or  filth}7  language ; 2  but  the 
following  was  held  not  to  be  such  :  "  Send  me  four 
girls  on  first  train  to  Francisville,  to  tend  fair."  3 

§  174.  Penalty  for  Refusing  Dispatches  of  Compet- 
ing iiines. — A  statutory  provision  requiring  tele- 
graph companies  to  receive  and  forward  dispatches 
from  other  telegraph  lines,  as  well  as  from  individ- 
uals, "provided  that  nothing  contained  in  this 
section  shall  be  construed  to  require  any  telegraph 
company  or  association  to  receive  and  transmit 
dispatches  from  or  for  any  other  company  or  asso- 
ciation owning  a  line  of  telegraph  parallel  with,  or 
doing  business  in  competition  with,  the  line  over 
which  the  dispatch  is  required  to  be  sent, ' ' — has  been 
held  not  to  exempt  a  company  from  the  obligation 

1  Rogers  v.  Western  Union  Tel.  Co.,  7S  Ind.  169;  s.  c,  41  Am.  Rep. 
558.  The  court  quote  Perkins  v.  Jones,  26  Ind.  499.  as  settling  the  law 
that  the  retention  of  what  has  been  received  under  a  contract  entered 
into  on  Sunday  will  not  of  itself  be  a  ratification. 

2  Ante,  §  150. 

3  Compare  Western  Union  Tel.  Co.  v.  Ferguson,  57  Ind.  495. 


198     PENALTIES    AGAINST    TELEGRAPH    COMPANIES. 

to  receive  and  transmit  a  message  from  a  competing 
line,  to  be  transmitted  to  a  point  to  which  the  line 
of  the  latter  company  did  not  extend.1 

6  175.  When  Notice  to  the  Company  Necessary. — 
Under  the  Indiana  statute,  which  provides  that  the 
plaintiff  must  give  written  notice  of  default  on  the 
part  of  defendant,  the  statutory  penalty  for  viola- 
tion of  the  duty  created  by  the  contract  cannot  be 
recovered  unless  such  notice  is  given.2 

6  176.  When  Payment  of  Actual  Damages  no  Bar 
to  Recovery  of  a  Penalty. — Payment  by  a  telegraph 
company  of  expenses  incurred  by  a  person,  by  reason 
of  non-delivery  of  a  telegram,  has  been  held  no  bar  to 
an  action  for  a  penalty,  unless  received  in  full  settle- 
ment or  by  way  of  accord  and  satisfaction.3 

§  177.  Action  for  Penalty  hy  Addressee. — Under 
a  statute  of  Mississippi  *  providing  that  on  a  failure 
or  refusal  of  a  telegraph  company  to  transmit  or 
deliver,  within  a  reasonable  time,  without  good 
excuse,  any  message  delivered  to  it  for  such  pur- 
pose, the  person  injured  shall  recover  $20  in  addi- 
tion to  such  damages  as  are  allowed  by  law, — the 
person  to  whom  a  message,  of  no  pecuniary  value 
to  him,  is  sent,  the  charges  being  paid  by  the 
sender,  may  sue  for  such  statutory  penalty  for 
failure  to  deliver  the  same  in  a  reasonable  time 
without  excuse,  though  he  sustained  no  pecuniary 
loss  by  such  failure.5 

1  United  States  Tel.  Co.  v.  Western  Union  Tel.  Co.,  56  Barb.  (N.  Y.)  46. 

2  Western  Union  Tel.  Co.  v.  Yopst,  118  Ind.  248;  s.  c,  20  N.  E.  Rep. 
222;  3  Lawy.  Rep.  Ann.  224;  21  Am.  &  Eng.  Corp.  Cas.  8S;  25  Id.  514. 

3  Western  Union  Tel.  Co.  v.  Taylor,  84  Ga.  408;  s.  c,  S  L.  R.  A.  189; 
11  S.  E.  Rep.  396. 

4  Acts  Miss.  1886,  p.  91. 

'-  Western  Union  Tel.  Co.  v.  Allen,  66  Miss.  549;  s.  c,  6  South.   Rep. 
461. 


JURISDICTION.  199 

§  178.      Jurisdiction    of  Such  Actions:   Justices   of 

the  Peace. — Under  the  provision  of  the  Arkansas 
Constitution  of  1874,  confining  the  civil  jurisdiction 
of  justices  of  the  peace  to  actions  arising  on  contract, 
actions  of  replevin,  and  actions  for  injuries  to  per- 
sonal property,1  a  justice  of  the  peace  has  no  juris- 
diction of  an  action  against  a  telegraph  company  to 
recover  a  penalty  for  its  failure  to  deliver  a  message.2 

1  Const.  Ark.,  art.  7,  §  40. 

2  Baltimore,  etc.  Tel.  Co.  v.  Lovejoy,  48  Ark.  301;  s.  c,  3  S.  W.  Rep. 

183. 


200  STIPULATIONS  LIMITING  LIABILITY. 


CHAPTER  VIII. 

STIPULATIONS  AND  REGULATIONS  LIMITING  LIABILITY. 

Article  I.       Validity  of  Such  Stipulations  and  Regulations. 

Article  II.      Evidence  of  Knowledge  and  Assent. 

Article  III.    Stipulations  as  to  Repeating. 

Article  IV.    Stipulations  and  Limitations  as  to  Time  and  Man- 
ner of  Presenting  Claims  for  Damages. 


Article  I.— VALIDITY    OF    SUCH    STIPULATIONS    AND 
REGULATIONS. 

Section. 

183.  Cannot  Limit  Liability  for  Gross  Negligence. 

184.  A  Comprehensive  Statement  of  the  Doctrine. 

185.  Such  Regulations  must  be  Reasonable. 

186.  View  that  They  can  Stipulate   against    Liability  except    for 

Gross  Negligence,  Willful  Misconduct  or  Fraud. 

187.  Evidence  of  Gross  Negligence  within  this  Rule. 

188.  Cannot  Stipulate  against  Liability  for  Simple  Negligence. 

189.  Reason  of  this  Rule. 

190.  Cannot  Limit  Liability  for  Negligent  Mistakes,  Defective  In- 

struments, etc. 

191.  May  Stipulate  against  Liability  for  Mistakes  Due  to  Climatic 

Influences. 

192.  Cannot  Stipulate  against  Statutory  Penalty. 

193.  Unreasonableness  of  Condition  Limiting  Liability  to  the  Cost 

Paid  for  Transmission. 

194.  Stamping  Messages,  "Accepted  Subject  to  Delay." 

195.  View  that  Such  Stipulations  do  not  Exempt  from  Liability  to 

the  Receiver  of  the  Message. 

196.  Reasonableness  of  a  Regulation  Requiring  Deposit  to  Pay  for 

Answer. 


VALIDITY    OF    STIPULATIONS,    ETC.  201 

197.    Reasonableness  of  Regulation  Requiring  Deposit  to  Pay  for 

Charges  of  Delivery. 
19S.     Evidence  of  Local  Usage  Inadmissible  to  Vary  the  Contract. 

199.  Reasonableness  of  Regulation  when  a  Question  of  Law  and 

when  a  Question  of  Fact. 

200.  Instances  where  Determined  as  a  Question  of  Law. 

201.  Invalidity  of  Stipulations  on  Night  or  Half  Rate  Messages  Ex- 

onerating from  Liability. 

202.  Valid  except  in  Cases  of  Gross  Negligence  or  Fraud. 

§  183.  Cannot  Limit  Liability  for  Gross  Negli- 
gence.— Irrespective  of  the  question  whether  the  bus- 
iness of  the  telegraph  company  is  similar  to  that  of 
a  common  carrier,  the  American  courts  are  generally 
agreed  that,  while  such  companies  may  establish 
and  enforce  reasonable  rules  and  regulations  for  the 
safe  and  proper  conduct  of  their  business,  they  can- 
not establish  any  regulation,  or  bind  the  sender  of 
a  message  in  any  contract,  which  will  relieve  the 
company  from  liability  for  the  gross  negligence, 
willful  misconduct,  or  bad  faith  of  itself  or  of  its 
servants.1 

1  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232,  24S;  s.  c,  96  Am. 
Dec.  519;  Western  Union  Tel.  Co.  v.  Fontaine,  58  Ga.  433;  Western 
Union  Tel.  Co.  v.  Graham,  1  Colo.  230;  Western  Union  Tel.  Co.  v. 
Buchanan,  35  Ind.429;  Western  Union  Tel.  Co.  v.  Meek,  49  Ind.  53; 
Western  Union  Tel.  Co.  v.  Fenton,  52  Ind.  1 ;  True  v.  International  Tel. 
Co.,  60  Me.  9,  17;  Candee  v.  Western  Union  Tel.  Co.,  34  Wis.  471; 
Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433;  s.  c,  1  Am. 
Rep.  285;  Manville  v.  Western  Union  Tel.  Co.,  37  Iowa,  214; 
Griunell  v.  Western  Union  Tel.  Co.,  113  Mass.  299;  Breese  v. 
United  States  Tel.  Co.,  48  X.  Y.  132;  Passmore  v.  Western  Union 
Tel.  Co.,  78  Pa.  St.  238;  American  Union  Tel.  Co.  v.  Daughtery, 
89  Ala.  191;  s.  c,  7  South.  Rep.  060.  It  is  said  by  an  authorita- 
tive court  that  such  a  company  has  a  clear  right  to  protect  itself 
against  extraordinary  risk  and  liability,  by  such  rules  and  regulations 
as  may  be  required  for  that  purpose.  In  the  view  of  this  court,  "it  would 
be  manifestly  unreasonable  to  hold  these  telegraph  companies  liable  for 
every  mistake  or  accidental  delay  that  may  occur  in  the  operation  of 
their  lines.  From  the  very  nature  of  the  service,  while  due  diligence 
and  good  faith  may  be  required  at  th..  hands  of  the  company  and  its 
agents,  accidents,  delays,  and  miscarriages  may  occur,  that  the  greates 


202  STIPULATIONS    LIMITING    LIABILITY. 

§  184.  A  Comprehensive  Statement  of  the  Doc- 
trine.— The  subject  was  attentively  gone  over  by 
the  Supreme  Judicial  Court  of  Maine,  in  an  able 
opinion  by  Kent,  J.,  and  the  conclusions  of  the 
court  were  thus  stated  : 

1.  Telegraph  companies  offering  to  perform 
services  for  the  public,  at  fixed  rates,  exercise  a 
</i6«si-public  employment. 

2.  Such  a  company  may  enforce  and  adopt  rea- 
sonable rules  and  regulations  for  the  convenient, 
prompt,  and  satisfactory  performance  of  the  act  or 
duty  undertaken. 

3.  This  right  in  a  company  is  not  absolute  or 
unlimited  ;  but  such  rules  are  subject  to  the  test  of 
reasonableness,  in  view  of  the  rightful  claims  of 
public  policy  and  private  rights,  and  the  enforce- 
ment of  the  obligation  of  good  faith  and  honest 
effort  to  perform. 

4.  The  test  must  be  applied  by  the  court,  when- 
ever the  question  arises  on  the  validity  of  any  such 
regulation,  according  to  the  rule  already  stated. 

5.  A  rule  or  stipulation  which  covers  all  possi- 
ble delinquencies,  mistakes,  delays,  or  neglects  in 

amount  of  care  cannot  avoid.  Hence,  in  England,  and  in  many  of  the 
American  States,  provision  has  been  made  by  statute  authorizing  these 
companies  to  prescribe  rules  and  regulations  whereby  they  may  be  pro- 
tected against  extraordinary  liability."  United  States  Tel.  Co.  v. 
Gildersleve,  20  Md.  232,  246;  s.  C,  96  Am.  Dec.  519,  523,  per  Alvey,  J. 
Substantially  the  same  views  will  be  found  in  the  following  cases : 
Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525;  s.  C,  2  Thomp.  Neg. 
82S;  Birney  v.  New  York,  etc.  Tel.  Co..  18  Md.  341 ;  Wann  v.  Western 
Union  Tel.  Co.,  37  Mo.  472;  Wolf  v.  Western  Union  Tel.  Co.,  62  Pa. 
St.  83;  Western  Union  Tel.  Co.  v.  Graham,  1  Colo.  230;  Sweetland  v. 
Western  Union  Tel.  Co.,  27  Iowa,  433;  s.  c,  1  Am.  Kep.  285.  Proba- 
bly no  court  would  deny  the  abstract  statement  of  the  law  thus  laid 
down.  But  few  courts  will  agree  that  it  may  be  applied  as  was  done 
by  the  Maryland  court,  so  as  to  excuse  the  company  for  failing  to  send 
a  dispatch  because  there  was  the  usual  condition  on  the  blank  on  which 
it  was  written  in  regard  to  repeating  and  answering. 


VALIDITY    OF    STIPULATIONS,    ETC.  203 

transmitting,  or  delivering,  or  not  delivering  a  mes- 
sage, from  whatever  cause  arising,  is  not  a  reason- 
able regulation  within  this  rule. 

6.  Such  a  rule  is  not  saved  from  these  objections 
by  the  condition  of  liability  to  repay,  if  required 
by  the  sender,  the  trifle  paid  to  them.  It  is  a  mere 
evasion  of  the  legal  liability,  and  is  never  the  meas- 
ure of  damages  for  non-performance  of  a  contract  of 
this  kind. 

"The  company,"  he  continued,  "is  not  the  ulti- 
mate judge  of  the  reasonableness  of  an  adopted 
rule.  And  in  this  single  proposition  lies  the  gist 
of  the  whole  matter.  The  court  must  determine  in 
every  case,  when  the  question  is  fairly  raised, 
whether  the  particular  restriction  or  qualification  is 
a  reasonable  exercise  of  the  powers  residing  in  the 
company."1 

§  185.  Such  Regulations  must  be  Reasonable. — 
The  well  known  rule  in  regard  to  the  by-laws  of 
corporations  sustains  a  very  close  analogy  to  the 
regulations  of  telegraph  companies  in  the  conduct 
of  their  business  and  in  the  restriction  of  their  lia- 
bility.2 Such  regulations  will  therefore  be  set  aside 
by  the  judicial  courts:  1.  When  they  contravene  the 
constitution  or  laws  of  the  United  States.  2.  When 
they  contravene  the  constitution  or  laws  or  the  pub- 
lic policy  of  the  State  by  whose  laws  their  validity 
is  determined.  3.  When  they  are  otherwise  un- 
reasonable.3 

1  True  v.  International  Tel.  Co.,  60  Me.  9,  18;  s.  C,  11  Am.  Rep.  156. 

2  1  Thomp.  Corp.  §  1021,  et  seq. 

8  These  views  may  be  gathered  from  the  following  among  other 
cases:  Western  Union  Tel.  Co.  v.  Graham,  1  Colo.  230;  s.  c,  9  Am. 
Rep.  136;  Western  Union  Tel.  Co.  v.  Buchanan,  35  Ind.  429;  s.  C,  9 
Am.  Rep.  744;  Western  Union  Tel.  Co.  v.  Meek,  49  Ind.  53;  Western 
Union  Tel.  Co.  v.  Adams,  87  Id.  598;  s.  c,  44  Am.  Rep.  744;  Western 


204  STIPULATIONS    LIMITING    LIABILITY. 

§  186.  View  that  they  can  Stipulate  against  Lia- 
bility except  for  Gross  Negligence,  "Willful  Miscon- 
duct or  Fraud. — There  is,  however,  a  class  of  cases  in 
which  the  view  is  expressed  th-at  such  companies  can, 
by  stipulations  on  their  blanks,  exonerate  themselves 
from  liability  except  for  gross  negligence,  or  willful 
misconduct;1    and    some    of    the    courts    add,    for 

Union  Tel.  Co.  v.  Young,  93  Ind.  118;  Ellis  v.  American  Tel.  Co.,  13 
Allen  (Mass.),  226;  S.  C,  Allen  Tel.  Cas.  306;  Atlantic,  etc.  Tel.  Co.  v. 
Western  Union  Tel.  Co.,  4  Daly  (N.  Y.),  527;  Wolf  v.  Western  Union 
Tel.  Co.,  62  Pa.  St.  S3;  s.  c,  1  Am.  Kep.  387;  Western  Union  Tel.  Co. 
v.  Reynolds,  77  Va.  173 ;.s.  c,  46  Am.  Rep.  715;  Heiman  v.  Western 
Union  Tel.  Co..  57  Wis.  562;  Redpath  v.  Western  Union  Tel.  Co.,  112 
Mass.  71;  s.  c,  17  Am.  Rep.  69;  Western  Unios  Tel.  Co.  v.  Carew,  15 
Mich.  525;  s.  c,  Allen  Tel.  Cas.  345;  Grinnell  v.  Western  Union  Tel. 
Co.,  113  Mass.  299;  s.  c,  18  Am.  Rep.  485;  Breese  v.  United  States  Tel. 
Co.,  48  N.  Y.  132;  S.  C,  8  Am.  Rep.  526;  s.  C,  Allen  Tel.  Cas.  663; 
Young  v.  Western  Union  Tel.  Co.,  65  N.  Y.  163;  Passmore  v.  Western 
Union  Tel.  Co.,  78  Pa.  St.  238;  Aiken  v.  Telegraph  Co.,  5  S.  C.  358; 
Womack  v.  Western  Union  Tel.  Co.,  58  Tex.  176;  s.  C,  44  Am.  Rep. 
614;  Baxter  v.  Dominion  Tel.  Co.,  37  Up.  Can.  (Q.  B.)  470;  True  v. 
International  Tel.  Co.,  60  Me.  9;  s.  c,  11  Am.  Rep.  156. 

1  Western  Union  Tel.  Co.  v.  Buchanan,  35  Ind.  429;  s.  c.,9  Am.  Rep. 
744;  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232;  s.  C,  96  Am. 
Dec.  519;  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.),  226;  Breese  v. 
United  States  Tel.  Co.,  48  N.  Y.  132;  s.  C,  8  Am.  Rep.  526;  Grinnell  v. 
Western  Union  Tel.  Co.,  113  Mass.  299;  s.  c,  18  Am.  Rep.  485;  Wann 
v.  Western  Union  Tel.  Co.,  37  Mo.  472;  Western  Union  Tel.  Co.  v. 
Neill,  57  Tex.  283;  s.  c,  44  Am.  Rep.  589  ("except  when  caused  by  the 
misconduct,  fraud  or  want  of  due  care")  ;  Womack  v.  Western  Union 
Tel.  Co.,  58  Tex.  176;  s.  C,  44  Am.  Rep.  614;  White  v.  Western  Union 
Tel.  Co.,  5  McCrary  (U.  S.),  103;  s.  c,  14  Fed.  Rep.  710;  Western 
Union  Tel.  Co.  v.  Fontaine,  58  Ga.  433  ("gross  negligence").  In  the 
subsequent  case  of  Western  Union  Tel.  Co.  v.  Blanchard,  68  Ga.  299;  s. 
c,  49  Am.  Rep.  480,  the  court  denied  the  proposition  that  the  company 
could,  by  a  regulation  of  its  own,  protect  itself  against  every  degree  of 
negligence,  except  "gross  negligence  or  fraud,"  and  held  that  there 
was  no  error  in  refusing  an  instruction  which  embodied  this  proposi- 
tion. In  Kansas  it  has  been  said,  speaking  with  reference  to  the  con- 
dition in  the  blanks  of  the  Western  Union  Telegraph  Company  in 
regard  to  repeating  messages,  that  a  telegraph  company  cannot,  by 
such  a  stipulation,  exonerate  itself  from  liability  for  errors  arising  from 
gross  negligence.  Western  Union  Tel.  Co.  v.  Crall,  38  Kan.  679;  s.  c,  5 
Am.  St.  Rep.  795:  Western  Union  Tel.  Co.  v.  Howell,  3S  Kan.  685.  In 
North  Carolina  the  view  still  obtains  that  a  telegraph  company  may 


VALIDITY    OF    STIPULATIONS,    ETC.  205 

fraud,1  or  for  any  conduct  inconsistent  with  good  faith.'1 
It  is  not  clear  that  the  courts  which  make  use  of  the 
expression  gross  negligence,  in  this  connection,  in- 
tend to  take  a  distinction   between  ordinary  negli- 
gence and  gross  negligence.3     Notwithstanding  the 
reasoning  of  Lord  Holt  in  the   celebrated  case  of 
Coggs  v.  Bernard,4  modern  judicial  opinion  is  drift- 
ing toward   the  view  that  a  division  of  care  and, 
correlatively,  of  negligence,  into  degrees,  is  a  mat- 
ter too  subtle  and  refined  for  the  ordinary  purposes 
of  justice,  and  it  has  been  well  said  that  gross  neg- 
ligence is  nothing  more  than  negligence  with  an 
epithet.     A  review  of  the  cases  last  cited  leaves  the 
mind  in    doubt  whether,  except  in   one  or  two  of 
them,  the   court   really   intended  to  intimate  that 
there  is,  in  a  judicial  sense,  a  distinction  between 
negligence  and  gross  negligence,  in  respect  of  the 
liability  of  telegraph  companies.     In  some  of  these 
cases  it  seems  obvious  that  the  expression  has  been 
inadvertently  used,  and  that  in  others  it  has  been 
employed   for   mere    emphasis.      In    one  of  them, 
however,  Mr.  District  Judge  Foster,  in  charging  a 
jury,   denned   gross  negligence   as    meaning  "  that 
want  of  care  which  a  person  habitually  careless  and 


limit  its  liability  for  ordinary  negligence  in  sending  unrepeated  mes- 
sages, to  the  amount  paid  for  the  transmission  of  the  message ;  but  it 
cannot  exempt  itself  where  there  has  been  gross  negligence.  Pegram  v. 
Western  Union  Tel.  Co.,  97  X.  C.  57;  s.  c,  2  S.  E.  Rep.  256. 

1  Caudee  v.  Western  Union  Tel.  Co.,  58  Tex.  176;  s.  c,  17  Am.  Rep. 
452;  Western  Union  Tel.  Co.  v.  Xeill,  57  Tex.  283;  s.  C,  44  Am.  Rep. 
589. 

2  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232;  s.  c,  96  Am. 
Dec.  519. 

3  Compare,  for  instance.  Western  Union  Tel.  Co.  v.  Gildersleve,  29 
Md.  282;  s.  c,  96  Am.  Dec.  519,  and  Western  Union  Tel.  Co.  v.  Font- 
aine, 58  Ga.  433. 

42Ld.  Raym.  909. 


206  STIPULATIONS    LIMITING    LIABILITY. 

negligent  would  ordinarily  exercise  in  business 
transactions."1  It  is  not  perceived  in  what  respect 
this  definition  of  gross  negligence  conveys  a  dif- 
ferent idea  from  that  which,  is  conveyed  by  the 
word  negligence,  unless  it  is  intended  to  convey 
the  idea  that  negligence  becomes  gross  by  mere 
repetition.     But  this  cannot  be  a  sound  view. 

§  187.  Evidence  of  Gross  Negligence  Within  this 
Rule. — The  following  state  of  facts  has  been  held  to 
afford  evidence  from  which  a  jury  might  infer  gross 
negligence  on  the  part  of  the  telegraph  compan}'. 
In  a  message  containing  nine  words  besides  the  ad- 
dress and  signature  of  the  sender,  there  were  three 
mistakes.  It  was  sent  over  the  defendant's  line  on 
a  fair  day,  in  which  there  were  no  electrical  or  at- 
mospheric disturbances.  It  was  found  that  there 
was  no  similarity  in  the  sounds,  symbols  and  char- 
acters used  in  telegraphy  for  the  words  "Valley" 
and  "Neosho"  which  could  account  for  the  former 
being  changed  into  the  latter  in  the  transmission. 
In  short,  under  the  circumstances  above  named,  it 
was  held  that  there  was  evidence  of  gross  negli- 
gence in  making  the  following  message:  "Ship 
bones,  sulky  and  trap  to  Valley  Falls  immediately. 
Graham  Crall," — read:  "Ship  bones,  sulk}'  and 
traps  to  Neosho  Falls  immediately.  Graham  Crolt. '  '2 
In  another  case  in  the  same  State  the  word  "Salina" 
appeared  in  the  message  as  delivered,  instead  of  the 
word  "Salem,"  which  was  written  in  the  message 
by  the  sender.  It  was  found,  as  a  fact,  that  the 
word  Salem  was  so  plainly  written  that  it  could  not 

1  White  v.  Western  Union  Tel.  Co.,  5  McCrary  (U.  S.),  103;  s.  c,  14 
Fed.  Rep.  710. 

-  Western  Union  Tel.  Co.  v.  Crall,  38  Kan.  679;  s.  c,  5  Am.  St.  Rep. 
795. 


VALIDITY    OF    STIPULATIONS,    ETC.  207 

have  been  mistaken  for  the  word  "Salina,"  or  for 
any  other  word,  "by  any  person  possessing  ordinary 
eye-sight  who  would  examine  it  with  the  slightest 
care."  The  court  held  that  this  was  equivalent  to 
a  finding  that  the  company's  agent  did  not  exercise 
the  slightest  care  in  the  transmission  of  the  message. 
The  additional  fact  appeared  that  the  manager  of 
the  firm  to  whom  the  message  was  sent  feared  a 
mistake,  and  that  the  agent  of  the  company  asked 
for  a  verification  of  the  message.  It  was  decided 
that  this  was  notice  to  the  company  that  a  mistake 
was  feared,  and  that,  in  view  of  all  the  facts,  the 
company  was  guilty  of  gross  negligence.1  In  another 
case  a  message  was  received  by  a  telegraph  company 
to  be  sent  to  plaintiff's  attorney  at  N.,  and  the 
agent  at  the  transmitting  office  informed  the  agent 
at  N.  of  the  number  of  words  contained  in  the  mes- 
sage, and,  having  sent  the  message,  received  from 
the  agent  at  N.  the  signal  indicating  that  it  had 
been  properly  received,  and  contained  the  number 
of  words  indicated.  In  an  action  for  negligent  de- 
livery, the  agent  at  N.  admitted  that  the  word  "six" 
had  been  omitted  before  "hundred  and  sixty-three," 
and  that  the  word  "answer"  was  dropped,  but  tes- 
tified that  the  atmospheric  conditions  at  N.  weie 
not  favorable  when  the  message  was  received.  It 
was  held  that  the  evidence  showed  gross  negligence 
on  the  part  of  the  company.2 

§  188.  Cannot  Stipulate  Ag-ainst  Liability  for 
Simple  Negligence. — The  sounder  and  better  view, 
therefore,  is  believed  to  be  that  the  law  will  not,  in 
view  of  the  public  nature  of  the  employment  of  tele- 

1  Western  Union  Tel.  Co.  v.  Howell,  38  Kan.  685. 

2  Western  Union  Tel.  Co.  v.  Goodbar  (Miss.),  7  South.  Rep.  214. 


208  STIPULATIONS    LIMITING    LIABILITY. 

graph  companies,  and  on  grounds  of  public  policy, 
allow  them  to  impose  upon  persons  who  solicit  their 
services,  contracts  relieving  themselves  from  liability' 
for  negligence,  irrespective  of  any  distinction  be- 
tween simple  negligence  and  gross  negligence.  The 
reason  of  this  rule  is  almost  too  plain  for  statement 
or  discussion.  The  very  undertaking  of  a  telegraph 
company,  whenever  it  receives  a  message  for  trans- 
mission, necessarily  implies  an  engagement  on  its 
part  to  exercise  care  and  diligence  in  transmitting 
it,  and,  negatively,  not  to  be  guilty  of  negligence  in 
doing  so.  To  allow  it  to  engage  to  exercise  dili- 
gence in  the  undertaking,  and  to  accept  pay  for  ex- 
ercising diligence,  the  sender  of  the  message  thus 
executing  the  contract  on  his  part,  and  then  to 
allow  it  to  stipulate  that  it  shall  not  be  liable  if 
it  do  not  exercise  diligence,  is  at  once  the  height 
of  absurdity  and  the  height  of  injustice.  We  find, 
therefore,  that  many  courts  in  dealing  with  this 
subject  have  taken  the  simple  and  just  view  that 
such  stipulations  are  of  no  validity  in  so  far  as  they 
undertake  to  exonerate  the  telegraph  company' 
from  the  consequences  of  its  own  negligence.1 


1  Western  Union  Tel.  Co.  v.  Graham,  1  Colo.  230;  s.  c,  9  Am.  Kep. 
13G;  Western  Union  Tel.  Co.  v.  Blanchard,  G8  Ga.  299;  s.  C,  45  Am. 
Kep.  480;  Western  Union  Tel.  Co.  v.  Fontaine,  58  Ga.  433;  Hubbard  v. 
Western  Union  Tel.  Co.,  33  Wis.  558;  s.  C,  14  Am.  Kep.  775;  Western 
Union  Tel.  Co.  v.  Schotter,  71  Ga.  760;  Tyler  v.  Western  Union  Tel. 
Co.,  60  III.  421;  s.  c,  14  Am.  Kep.  3S;  S.  c,  on  second  appeal,  74  111. 
168;  24  Am.  Kep.  279;  Western  Union  Tel.  Co.  v.  Fenton,  52  Ind.  1; 
Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744,  751 ;  Western  Union 
Tel.  Co.  v.  Meredith,  95  Ind.  93;  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27 
[owa,  433;  s.  c,  1  Am.  Rep.  285;  Manville  v.  Western  Union  Tel.  Co., 
:57  Iowa.  214;  s.  c.,18  Am.  Rep.  8;  Telegraph  Co.  v.  Griswold,  37  Ohio 
St.  301;  s.  c,  41  Am.  Rep.  500;  Bell  v.  Dominion  Tel.  Co.,  3  Mont.  Leg. 
News,  406;  Smith  v.  Western  Union  Tel.  Co.,  83  Ky.  104;  Passmore  v. 
Western  Union  Tel.  Co.,  9  Phila.  88;  s.  c,  affirmed,  78  Pa.  St.  238. 


VALIDITY    OF    STIPULATION,    ETC.  209 

§  189.  Reason  of  This  Rule. — These  decisions 
proceed  upon  the  view  that  such  a  company  cannot, 
by  stipulations  imposed  upon  its  customers,  absolve 
itself  from  liability  for  the  want  of  ordinary  or  rea- 
sonable care  ;'  and  some  of  them  deny  the  proposi- 
tion that  they  can  be  allowed  to  operate  so  as 
to  relieve  the  company  from  liability  except  for 
gross  negligence,  holding  that  there  is  no  differ- 
ence in  a  juridical  sense  between  negligence  and  gross 
negligence.2  Others  state  that,  in  view  of  the  public 
nature  of  their  employment,  they  must  bring  it  to 
that  degree  of  skill  and  care  which  a  prudent  man 
would,  under  the  circumstances,  exercise  in  his  own 
affairs ;  and  that  any  stipulation  by  which  they 
undertake  to  relieve  themselves  from  this  obligation 
or  to  restrict  their  liability  for  the  failure  to  use 
such  skill  and  care  is  contrary  to  public  policy  and 
void.  It  has  been  added  that,  to  hold  otherwise 
would  arm  them  with  a  very  dangerous  power,  and 
leave  the  public  comparatively  remediless.3 

§  190.  Cannot  Limit  Liability  for  Negligent  Mis- 
takes, Defective  Instruments,  etc. — To  State  the  fore- 
going rule  more  in  the  concrete,  we  find  in  several 
legal  judgments  the  explicit  declaration  that  such  a 

1  "Xotwithstandiug  this  regulation  or  special  agreement,  it  is  still  the 
duty  of  the  defendant  to  employ  skillful  operators,  use  proper  instru- 
ments, and,  through  its  employees,  to  exercise  ordinary  and  reasonable 
care  in  the  transmission  and  delivery  of  messages. "  Miller,  J.  in  Man- 
ville  v.  Western  Union  Tel.  Co.,  37  Iowa,  214;  s.  c,  IS  Am.  Rep.  8,  11. 
To  the  same  effect  is  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433; 
s.  c,  1  Am.  Rep.  285;  Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458;  s.  C, 
20  Am.  Rep.  G05;  Harkness  v.  Western  Union  Tel.  Co.,  73  Iowa,  190; 
Fowler  v.  Western  Union  Tel.  Co.,  80  Me.  381.  So  held  as  to  express 
companies  by  the  Supreme  Court  of  the  United  States  in  Express  Co.  v. 
Caldwell,  21  Wall.  (U.  S.)  270. 

2  Telegraph  Co.  v.  Giiswold,  37  Ohio  St.  301 ;  S.  c,  41  Am.  Rep.  500. 

3  Smith  v.  Western  Union  Tel.  Co.,  83  Ky.  104;  s.  C,  4  Am.  St.  Rep. 
126. 

(14) 


210  STIPULATIONS    LIMITING    LIABILITY. 

company  cannot  limit  its  liability  for  mistakes  in 
the  transmission  of  messages  arising  from  the  failure 
to  use  reasonable  care  and  skill  in  the  performance 
of  the  service  or  from  those -which  arise  from  the 
use  of  defective  instruments.1 

§  191.  May  Stipulate  against  Liability  for  Mistakes 
due  to  Climatic  Influences. — Oil  the  other  hand,  the 
courts  agree  that  such  a  company  ought  not  to  be 
held  responsible  for  mistakes  occasioned  by  uncon- 
trollable causes,  such  as  atmospheric  electricity  or 
other  climatic  influences,  provided  the  mistakes 
could  not  have  been  guarded  against  by  the  exercise 
of  ordinary  care  and  skill  on  the  part  of  the  operat- 
ing agents,  they  being  provided  with  proper  instru- 
ments.2 Such  a  company  ought  not  to  be  held  liable 
for  mistakes  due  to  such  causes,  but  they  will  be 
allowed  to  stipulate  against  such  a  liability.  But 
such  a  stipulation  will  not  in  every  case  afford  a 
complete  exoneration  or  prevent  liability  from  at- 
taching irrespective  of  the  question  of  diligence, 
skill  or  negligence  under  the  given  conditions.  If, 
for  instance,  by  reason  of  atmospheric  disturbances 
the  message  cannot  be  correctly  transmitted,  the 
further  inquiry  will  be  open,  whether  the  company 
was  not  guilty  of  negligence  in  attempting  to  trans- 
mit it  until  the  temporary  causes  affecting  the  insu- 
lation of  its  wires  should  pass  away.3 

§  192.  Cannot  Stipulate  against  Statutory  Penalty. 
— Statutory  penalties  imposed  upon  telegraph  com- 
panies  for  non-feasance  or  misfeasance  in  the  dis- 

1  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  "27  Iowa,  4H3;  s.  C,  1  Am.  JJep- 
l's:,. 

2 Sweetland  y.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433;  s.  c,  1  Am.  Rep. 
2S5;  White  v.  Western  Union  Tel.  Co.,  U  Fed.  Rep.  710. 

3  Western  Union  Tel.  Co.  v.  Cohen.  73  Ga.  522. 


VALIDITY    OF    STIPULATIONS,    ETC.  211 

charge  of  their  public  duties,  are  founded  on  views 
of  public  policy;  and  the  purpose  of  the  legislature  in 
enacting  them  would  be  entirely  defeated  if  a  tele- 
graph company  could  impose  a  stipulation  upon  the 
sender  of  the  message  not  to  exact  the  penalty.1  Ac- 
cordingly, where  a  statute  imposes  'a  penalty  upon  a 
telegraph  company  of  $100  for  failing  to  transmit  a 
dispatch,  delivered  to  it  with  the  payment  or  tender 
of  the  usual  charge,  a  stipulation  on  a  blank  fur- 
nished by  the  company  and  used  by  the  sender  of  a 
message  limiting  his  recovery,  in  the  case  of  an  un- 
peated  message,  to  the  amount  paid  for  transmis- 
sion, is  no  defense  to  an  action  to  recover  the  penalty. 
"  The  company  cannot  thus  change  the  degree  or 
measure  of  her  statutory  liability,  by  the  adoption 
of  rules  and  regulations."2  Neither  can  such  a. 
company,  by  such  a  stipulation,  evade  the  penalty 
of  $100,  imposed  by  a  statute  of  the  same  State3  for 
failure  to  transmit  an  unrepeated  message  correctly.* 
§  193.  Unreasonableness  of  Condition  Limiting 
Liability  to  tbe  Cost  Paid  for  Transmission. — A 
clause  in  the  blank  furnished  for  use  by  a  telegraph 
company,  exonerating  in  general  terms  the  company 
from  all  liability  for  mistakes  or  delays  beyond  the 
cost  of  the  transmission  of  the  message,  is  unreason- 
able and  void  as  against  public  policy,  and  notwith- 
standing such  a  stipulation,  the  company  will  be 
liable  for  the  actual  damages  sustained  through  its 

1  In  this  case  1  Gav.  &  Hord  lud.  Stat.,  p.  611,  §  1. 

2  Western  Union  Tel.  Co.  v.  Buchanan,  35  lud.  429:  s.  C,  9  Am.  Rep. 
744;  Western  Union  Tel.  Co.  v.  Meek,  49  lud.  53;  Western  Union  Tel. 
<  !o.  v.  Adams,  87  Ind.  598;  s.  c.,44  Am.  Rep.  76.    See  ante,  §  157,  et  seq. 

8  Rev.  Stat.  Ind.  1S76,  p.  868;  1  Rev.  Stat.  Ind.  1881,  §  4176. 

*  Western  Union  Tel.  Co.  v.  Adams,  87  lad.  598;  s.  c.,44  Am.  Rep. 
776;  Western  Union  Tel.  Co.  v.  Young,  93  Ind.  118.  See  also  United 
States  Tel.  Co.  v.  Western  Union  Tel.  Co.,  50  Barb.  (X.  Y.)  46. 


212  STIPULATIONS    LIMITING    LIABILITY. 

negligent  failure  to  deliver  the  message.1  The  cases 
cited  as  authority  for  this  proposition  arc  but  a 
type  of  numerous  cases  cited  in  thepreceding  para- 
graphs which  expressly  or  impliedly  so  hold ;  and 
some  of  them  apply  the  same  rule  to  cases  where 
the  stipulation  limits  the  liability  of  the  company 
to  double  the  cost  of  transmission.  It  has  also  been 
held  that  an  agreement  by  the  sender  of  a  telegraph 
message  not  to  claim  damages  for  errors,  delays,  or 
non-delivery  "happening  from  any  cause,  beyond 
a  sum  equal  to  ten  times  the  amount  paid  for  trans- 
mission "  is  void  as  contrary  to  public  policy.2 

§  194.  Stamping-  Message  "Accepted  Subject  to 
Delay." — During,  a  general  strike  of  its  operators, 
the  Western  Union  Telegraph  Company  sought  to 
protect  itself  from  liability  for  delay  by  stamping 
all  messages  which  it  received  with  the  words  "ac- 
cepted subject  to  delay."  It  was  held  by  a  sub- 
ordinate court  in  New  York  City  that  the  company 
bad  no  right  to  insist  upon  the  sender  of  a  message 
consenting  to  its  being  so  stamped/' 

§  195.  View  that  Such  Stipulations  do  not  Ex- 
empt from  Liability  to  the  Receiver  of  the  Message. 
— A  stipulation  on  the  message  blanks  of  such  a 
company,  limiting  its  liability,  will  not,  in  the  view 
of  some  courts,  exempt  it  from  liability  to  the  re- 
ceiver of  the  message  if  it  is  wrongly  transmitted. 


1  True  v.  International  Tel.  Co.,  60  Me.  9;  s.  C,  11  Am.  Rep.  156; 
Gillis  v.  Western  Union  Tel.  Co.,  01  Vt.  401;  s.  c,  17  Atl.  Rep.  730. 
See,  contra,  Bennett  v.  Telegraph  Co.,  2  N.  Y.  Supp.  365;  s.  c,  IS  N. 
Y.  St.  Rep.  229;  Post,  §  232. 

2  Fowler  v.  Western  Union  Tel.  Co.,  80  Me.  381 ;  S.  c,  0  Am.  St.  Rep. 
211 ;  15  Atl.  Rep.  29;  38  Alb.  L.  J.  270;  10  Wash.  L.  Rep.  591;  4  Rail. 
&  Corp.  L.  J.  40. 

:;  Marvin  v.  Western  Union  Tel.  Co.  (Dist.  Ct.  New  York  City),  1"> 
Chicago  Legal  Xews,  410. 


VALIDITY    OF    STIPULATIONS,    ETC.  213 

These  decisions  proceed  upon  the  general  idea  that 
a  public  duty  has  been  violated,  for  which  the  com- 
pany is  civilly  responsible  to  the  person  to  whom 
the  message  was  directed,  without  any  privity  of 
contract  between  it  and  him.1 

§  196.  Reasonableness  of  Regulation  Requiring 
Deposit  to  Pay  for  Answer. — A  regulation  of  a  tele- 
graph company  requiring  the  sender  of  a  message, 
which  calls  for  an  answer,  to  deposit  enough  money 
to  pay  for  an  answer  of  ten  words,  has  been  held 
not  unreasonable.2  Where  such  a  regulation  was  in 
force  this  case  arose  :  The  plaintiff  sent  from  his 
hotel,  which  he  was  just  about  leaving,  a  message, 
by  a  messenger,  to  the  telegraph  office,  with  money 
for  its  prepayment,  but  not  for  the  prepayment  of 
the  answer.  The  company  refused  to  send  the 
message,  but  sent  it  back  to  the  hotel  where  it  ar- 
rived after  the  plaintiff  had  left  the  town.  It  was 
held  that  he  was  not  entitled  to  recover.3 

§  197.  Reasonableness  of  Regulation  Requiring 
Deposit  to  Pay  for  Charges  of  Delivery. — A  regula- 
tion of  a  telegraph  company,  printed  on  its  message 
blanks,  prescribing  the  limits  within  which  mes- 
sages will  be  delivered  free,  and  requiring  a  deposit 
to  cover  the  cost  of  delivery  if  the  message  is  to  be 
delivered  outside  of  those  limits,  has  been  held  rea- 
sonable ;  so  that  if  the  person  to  whom  the  message 
is  addressed  lives  outside  the  prescribed  limits,  the 
sender  of  the  message,  if  he  knows  of  the  regula- 


1  Western  Union  Tel.  Co.  v.  Fen  ton,  ~>'l  Ind.  1.1;  New  York,  etc.  Tel. 
Co.  v.  Dryburg,  35  Pa.  St.  298;  Harris  v.  Western  Union  Tel.  Co.,  9 
Phila.  (Pa.)  88. 

:  Western  Union  Tel.  <'o.  McGuire,  10-1  End.  130;  s.  C,  54  Am.  Rep. 
296. 

"Hewlett  v.  Western  Union  Tel.  <'o..  28  Fed.  K>';>.  181. 


214  STIPULATIONS   LIMITING    LIABILITY. 

tion,  must  ascertain  the  fact  and  make  the  required 
deposit  :  and  his  illiteracy  is  no  excuse  for  his 
failure  so  to  do.1 

§  198.  Evidence  of  Local  Usag-e  Inadmissible  to 
Vary  the  Contract. — In  an  action  against  a  telegraph 
company  for  a  mistake  in  sending  a  message,  evi- 
dence of  a  usage  in  a  local  office  of  the  company 
has  been  held  inadmissible  to  vary  the  terms  of  the 
contract  under  which  the  message  is  sent,  expressed 
on  the  message  blank.2 

§  199.  Reasonableness  of  Regulation  when  a 
Question  of  Law  and  when  a  Question  of  Fact. — As 
a  general  rule,  the  reasonableness  of  the  regulations, 
as  well  as  of  the  by-laws  of  a  corporation,  presents 
a  question  of  law  to  be  decided  by  the  court,  and  not 
to  be  submitted  to  a  jury.  Questions  may,  however, 
arise  with  reference  to  the  reasonableness  of  a  partic- 
ular regulation,  where  the  question  of  reasonableness 
will  depend  upon  a  variety  of  circumstances  or  con- 
ditions, in  which  the  opinion  of  twelve  men  in  the 
jury  box,  comparing  their  experience,  will  be  much 
better  than  that  of  the  judge,  proceeding  upon  the 
analogies  of  the  law.  When,  therefore,  the  Su- 
preme Court  of  the  territory  of  Utah  held,  under  a 
collection  of  facts,  that  whether  a  regulation  closing 
a  telegraph  office  on  Sunday  at  6  p.  m.  was  reason- 
able, was  a  question  for  the  jury,3  the  court  seems 
to  have  reached  a  sound  conclusion. 


1  Western  Union  Tel.  Co.  v.  Henderson,  Si)  Ala.  ">10;  S.  C,  7  South. 
Rep.  419;  s.  c,  30  Am.  &  Eng.  Corp.  Cas.  615; 

2Grinuell  v.  Western  Union  Tel.  Co.,  113  Mass.  299,  306;  s.  C,  18 
Am.  Rep.  4S5. 

y  The  case  was  that  a  telegraph  company  received  a  dispatch,  and 
payment  for  its  transmission  to  O.,  at  G:  50  P.  M.  on  Sunday.  The  tele- 
gram was  a  request  to  send  a  physician  by  the  first  train.  It  was  re- 
ceived  at   O.  at  8:09   p.m.     The  next   train  left  at  11:30  P.M.     The 


VALIDITY    OF    STIPULATIONS,    ETC.  215 

§  200.      Instances  where  Determined  as  a  Question 

of  Law. — In  most  cases,  however,  the  reasonable- 
ness of  such  regulations  will  be  determined  by  the 
judge  as  a  question  of  law.  Such  was  the  course 
taken  where  a  gold  and  stock  telegraph  company 
put  its  instruments  into  the  office  of  a  subscriber  on 
condition  that  he  should  not  flirnish  copies  to 
other  persons,  and  that  the  company  might  remove 
the  instruments  if  he  should  violate  the  condi- 
tion,— the  court  holding  the  condition  to  be  a  rea- 
sonable one.1  The  question  was  likewise  resolved 
as  a  question  of  law  in  another  case,  where  a  tele- 
graph company  had  placed  in  the  office  of  a  broker 
a  "stock  ticker,"  under  a  contract  by  wThich  the 
broker  agreed  that  the  company  might  discontinue 
its  service,  without  notice,  whenever,  in  its  judg- 
ment, any  breach  of  the  condition  of  the  contract 
should  have  been  made  by  him.  Here  it  was  held, 
that  the  regulation  was  an  unreasonable  one,  and 
afforded  no  defense  to  an  action  to  restrain  the  re- 
moval of  the  ticker;  nor  was  the  fact  that  plaintiff 
might  maintain  an  action  at  law  for  damages  a  bar 
thereto.2 

§  201.  Invalidity  of  Stipulations  on  Night  or 
Half-Rate  Messages  Exonerating-  from  Liability. — 
Telegraph  companies  have  established  the  practice 
of  sending  messages  during  the  night,  when  their 

telegram  was  delivered  at  7  :  35  A.  M.  tbe  next  day.  The  office  bonis  at 
O.  closed  on  Sunday  at  G  P.  M.,  and  by  tbe  rules  of  tbe  office,  telegram- 
received  alter  tbat  time  were  not  delivered  until  the  next  morning. 
Held,  that  it  was  tor  the  jury  to  determine  the  reasonableness  of  such 
regulations.  Brown  v.  Western  Union  Tel.  Co.  (Utah),  21  Pac.  Hep. 
988. 

1  Shepard  v.  Gold  &  Stock  TVlegraph  Co.,  38  Hun  (X.  Y.  .  338. 

2  Smith  v.  Gold,  etc.  Telegraph  Co.,  42  Hun  (X.  Y.),  4.">4;  s.  c,  6  N- 
Y.  St.  Rep.  110. 


216  STIPULATIONS    LIMITING    LIABILITY. 

wires  are  not  burdened,  at  half  the  usual  rates 
charged  for  day  messages.  It  occurred  to  these 
companies,  when  this  practice  was  invented;  that  it 
would  be  a  happy  idea  if  they  could  take  the 
money  of  the  person  tendering  the  message,  and 
then  transmit  the  message  or  not,  as  to  them  should 
he  convenient,  and  escape  all  liability  for  the  non- 
performance of  the  obligation  assumed.  Accord- 
ingly they  inserted  in  their  night  message  blanks 
this  condition:  ''The  company  will  receive  mes- 
sages to  be  sent  during  the  night  at  one-half  the 
usual  rates,  on  condition  that  the  company  shall  not 
be  liable  for  errors  or  the  delay  in  the  transmission 
or  delivery,  or  for  non-delivery,  of  such  messages, 
from  whatever  cause  occurring,  and  shall  only  be 
bound  in  such  case  to  return  the  amount  paid  by 
the  sender."  This  met  with  such  disfavor  by  the 
courts  that  these  companies  concluded  to  make  the 
slight  concession  to  the  public  of  paying  to  the 
sender  of  a  message  an  amount  not  exceeding  ten 
times  the  sum  paid  for  the  transmission,  in  case  they 
should  take  his  money  and  then  throw  his  message 
into  the  waste-basket.  They,  accordingly,  got  up 
a  new  form  of  blanks  containing  these  words : 
'"The  company  will  receive  messages  for  transmis- 
sion, to  be  sent  without  repetition  during  the  night, 
at  one-half  the  usual  rates,  on  condition  that  the 
sender  will  agree  that  he  will  not  claim  damages 
from  it  for  errors  or  delays,  or  for  non-delivery  of 
such  messages,  happening  from  any  cause  other 
than  the  acts  of  its  corporate  officers,  beyond  a  sum 
equal  to  ten  times  the  amount  paid  for  transmis- 
mission."  Above  the  blank  space  reserved  for 
writing  the  message,  there   are   also  these  words: 


VALIDITY    OF    STIPULATIONS,    ETC.  217 

"  Send  the  following  night  message,  subject  to  the 
above  conditions,  which  are  hereby  agreed  to." 
The  weight  of  authority  is  that  such  a  stipulation 
is  contrary  to  public  policy  and  void,  even  though 
assented  to  bv  the  sender  of  the  message,  in  so  far  as  it 
undertakes  to  absolve  the  company  from  any  lia- 
bility whatsoever,  or  from  any  liability  beyond  the 
obligation  to  return  the  sum  paid  for  transmitting 
the  message  ;  and  that  it  is  also  void  for  the  reason 
that  its  terms  are  repugnant,  in  that  the  company 
assumes  the  obligation  of  sending  the  message,  and 
in  the  same  contract  undertakes  to  exonerate  itself 
from  such  obligation.1 

§  202.  Valid  Except  in  Cases  of  Gross  Negligence 
or  Fraud. — Conforming  to  a  view  already  stated,2 
there  is  some  judicial  authority  to  the  effect  that 
such  a  stipulation  is  valid  and  effectual,  so  far  as 
to  relieve  the  company  from  all  liability  beyond  the 
stipulated  sum,  except  for  its  own  gross  negligence 
or  fraud;3  or,  as  was  said  in  one  case,  except  for 
miscarriages  shown  to  have  been  occasioned  by 
misconduct,  fraud  or  want  of  due  care/ 

1  True  v.  International  Tel.  Co.,  60  Me.  9;  s.  C  11  Am.  Rep.  156;  Allen 
Tel.  Cas.  530 ;  Bartlett  v.  Western  Union  Tel.  Co.,  62  Me.  209 ;  S.  c,  16  Am. 
Hep.  437;  Fowler  v.  "Western  Union  Tel.  Co.,  SO  Me.  3S1 ;  s.  c,  6  Am.  St. 
Hep.  211 ;  15  Atl.  Rep.  29;  Harkness  v.  Western  Union  Tel.  Co.,  73  Iowa, 
190;  Hubbard  v.  Western  Union  Tel.  Co.,  33  Wis.  558;  11  Am.  Rep. 
775;  Candee  v.  Western  Union  Tel.  Co.,  31  Wis.  471;  s.  c,  17  Am. 
Rep.  452;  Western  Union  Tel.  Co.  v.  Fontaine,  58  Ga.  433. 

-Ante,  §  186. 

8  Schwartz  v.  Atlantic,  etc.  Tel.  Co.,  18  Hun  (X.  Y.),  157;  Aiken  v. 
Telegrapti  Co.,  5  S.  C.  358;  Jones  v.  Western  Union  Tel.  Co.,  18  Fed. 
Rep.  717. 

4  Western  Union  Tel.  Co.  v.  Xeill,  57  Tex.  2S3;  S.  C,  44  Am.  Rep. 
589. 


218  STIPULATIONS    LIMITING    LIABILITY 


Article  II.—  EVIDENCE  OF    KNOWLEDGE  AND  ASSENT. 

Section. 

206.  Proof  of  Knowledge  of  Regulation. 

207.  Stipulation  on  Message  a  Part  of  the  Contract. 

208.  Various  Statements  of  this  Rule. 

209.  Illustrations. 

210.  Exceptional  View  that  Actual  Notice  of  the  Stipulation  must 

he  Brought  Home  to  the  Sender. 

211.  View  that  Customer  Bound  to  Know  Rules  of  Company. 

212.  Unsoundness  of  this  View. 

213.  View  that  Sender  is  Bound  by  Rules  of  whose  Existence  he 

has  Knowledge. 

§  206.  Proof  of  Knowledge  of  Regulation. — 
Obviously,  such  a  regulation,  in  order  to  bind  the 
sender  or  receiver  of  a  dispatch,  must  be  brought, 
in  some  way,  to  the  knowledge  of  the  sender.1  But 
if  a  regulation  limiting  the  liability  of  the  company 
is  a  reasonable  one,  such  as  the  company  may  law- 
fully make,  and  is  printed  in  plain  type  on  the 
company's  blanks,  in  such  a  manner  as  to  call  the 
attention  of  customers  to  it,2  or  displayed  in  con- 
spicuous type  on  the  wall  in  the  company's  office,3 
it  will  be  presumed  that  a  customer  sending  a  dis- 

1  De  Rutte  v.  New  York,  etc.  Tel.  Co.,  1  Daly  (N.  Y.),  547,  559;  s.  c, 
30  How.  Pr.  (N.  Y.)  403. 

-  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525;  Young  v.  Western 
Union  Tel.  Co.,  05  N.  Y.  1G3;  Breese  v.  Western  Union  Tel.  Co.,  48  N. 
Y.  132,  139;  s.  c,  31  How.  Pr.  (X.  Y.)  S6;  Belger  v.  Diusmore,  51  N. 
Y.  160,173;  Redpatli  v.  Western  Union  Tel.  Co.,  112  Mass.  71.  Compare 
Grace  v.  Adams.  100  Mass.  505.     See  next  section. 

3  Birney  v.  Xew  York.  etc.  Tel.  Co.,  18  Md.  341. 


EVIDENCE    OF    KNOWLEDGE    AND    ASSENT.  219 

patch  on  the  blank,  in  the  one  case,  or  writing  it  in 
the  office  in  the  other,  had  notice  of  the  regulation 
and  assented  to  it.  The  fact  that  the  condition  is 
in  small  type  will  not  alter  the  case,  where  there  is 
large  type  attracting  the  attention  of  the  sender  of 
the  message  to  it,  so  that  the  use  of  small  type  is 
not  obscure  and  deceptive.1 

§  207.  Stipulations  on  Messages  a  Part  of  the 
Contract. — Telegraph  companies  generally  furnish 
their  customers  with  blanks  upon  which  to  write  the 
messages  which  they  wish  to  transmit.  Upon  these 
blanks  are  printed  the  regulations,  conditions,  or 
limitations  upon  which  the  company  professes  to 
transmit  messages.  These  conditions,  regulations 
or  limitations,  if  not  invalid  within  the  rules  pre- 
viously stated,  are  generally  regarded  as  forming  a 
part  of  the  contract  between  the  company  and  the 
sender  of  the  message.2  Such  printed  stipulations 
are  in  the  nature  of  a  general  proposition  to  the 
public  of  the  terms  on  which  all  messages  are  to  be 
sent ;  and  one  who  writes  a  message  on  such  a 
blank  and  delivers  it  to  an  agent  of  the  company 
for  transmission  over  its  wires,  is,  in  the  view  of 
most  courts,  deemed  in  law  to  have  accepted  the 
proposition  which  thus  becomes  a  contract  between 
him  and  the  company.3  The  sender  of  the  message 
is  thereafter  estopped  from  denying  that  he  assented 
to  the  regulations  contained  in  it,  although.,  as  a 
matter  of  fact,  he  may  not  have  read  them.4 

1  Wolf  v.  Western  Union  Tel.  Co..  02  Pa.  St.  83;  s.  c,  1  Am.  Rep.  387. 

2  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232;  s.  C,  90  Am.  Dee. 
519;  Allen  Tel.  Cas.  390. 

3  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525;  s.  c,  Allen  Tel. 
Cas.  345;  2  Thomp.  Neg.  829;  Hill  v.  Western  Union  Tel.  Co.  (Ga.), 
11  S.  E.  Rep.  874. 

4  Grinnell   v.  Western  Union  Tel.  Co.,  113  Mass.  299;   s.  C,  IS  Am. 


220  STIPULATIONS    LIMITING    LIABILITY. 

6  208.  Various  Statements  of  this  Rule. — It  is 
merely  another  expression  of  the  same  rule  to  say, 
as  some  courts  do,  that  the  transmission  of  the  mes- 
sage is  evidenct  of  the  assent  -of  the  sender  to  the 
printed  conditions  thereon,  whether  in  fact  he  lias 
read  them  or  not.1  Some  courts  qualify  their  state- 
ment of  this  doctrine  by  making  this  presumption 
of  assent  apply  in  the  absence  of  any  proof  that  the 
blanks  were  printed  in  such  small  type,  or  other- 
wise, as  to  mislead,  or  that  the  sender  was  so  illit- 
erate that  he  could  not  read  them;  or  that,  when 
furnished  by  the  agent,  he  had  no  opportunity  to 
read,  and  that  the  agent  so  knew,"  Others  say  that 
he  is  bound  by  the  restrictive  stipulations  on  the 
message,  whether  he  has  read  them  or  not,  provided 
no  fraud  or  imposition  has  been  used  to  prevent 
him  from  acquiring  knowledge  of  them.?  The  rule 
that  the  printed  matter  of  the  form  on  which  a  tel- 
egraph message  is  written  constitutes  a  contract 
between  the  sender  and  the  telegraph  company,  is 
of  especial  application  where  the  sender  is  accus- 
tomed to  use  similar  forms.  In  such  a  case  he  is 
presumed  to  know  their  contents  and  to  assent  to 
the  terms  therein  contained.4 

Rep.  485;  Breese  v.  United  States  Tel.  Co.,  48  X.  Y..  132;  s.  c  .  S  Am. 
Rep.  5-26;  Womack  v.  Western  Union  Tel.  Co..  58  Tex.  170;  s.  c,  44 
Am.  Rep.  614:  Belger  v.  Dinsmore,  51  N".  Y.  106. 

1  Redpath  v. Western  Union  Tel.  Co.,  112  Mas-.  71 ;  s.  C,  17  Am.  Rep.  69. 

2  Earl.  C.  in  Breese  v.  United  States  Tel.  Co.,  48  X'.  Y.  132;  s.  c,  8 
Am.  Rep.  526.  531  :  Lewis  v.  Great  Western  R.  Co.,  5  Hurl.  A  X.  867; 
Wolf  v.  Western  Union  Tel.  Co..  62  Pa.  St.  83.87;  s.  C,  1  Am.  Rep.  3S7. 

3Beasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Rep.  181.  One  who 
knows  that  a  telegraph  blank,  when  complete,  contains  certain  agree- 
ments, cannot  protect  himself  from  their  operation  by  showing  that  a 
portion  of  them  was  torn  from  the  blank  on  which  he  wrote  his  message. 
Kiley  v.  Western  Union  Tel.  Co.,  109  X.  Y.  231;  s.  C,  16  X.  E.  Rep.  75. 

*  Bennett  v.  Western  Union  Tel.  Co.,  18  X.  Y.  St.  Rep.  777;  2  X.  Y. 
Supp.  365.     In  like  manner,  the  general  rule  is  that  if   a  shipper  takes  a 


EVIDENCE    OF    KNOWLEDGE    AND    ASSENT.  221 

§  209.  illustrations. — The  blanks  now  employed 
by  the  Western  Union  Telegraph  Company,  after 
reciting  the  conditions  upon  which  alone  the  com- 
pany will  transmit  messages,  contain  the  following  : 
''Send  the  following  message  subject  to  the  above 
conditions  and  agreement."  These  words  are  fol- 
lowed bv  blank  lines  for  writing  in  the  message. 
When  the  message  is  thus  written  and  signed  by 
the  sender,  the  frame  of  the  language,  it  will  be 
observed,  appropriately  constitutes  a  contract.  In 
view  of  this  fact  it  has  been  said  :  "A  party  using 
such  a  blank,  and  writing  his  dispatch  thereon,  as- 
sents to  the  terms  and  conditions  on  which  it  is  to 
be  sent.  If  he  omits  to  read  or  to  become  informed 
of  them,  it  is  his  own  fault.  A  contract  voluntarily 
signed  and  executed  by  a  party,  in  the  absence  of 
misrepresentation  or  fraud,  with  full  opportunity 
of  information  as  to  its  contents,  cannot  be  avoided 
on  the  ground  of  his  negligence  or  omission  to  read 
it,  or  to  avail  himself  of  such  information."1  Where 
the  sender  told  the  operator  that  he  knew  nothing 
about  the  business,  and  wished  he  would  write 
the  message,  which  the  operator  did,  and  the  sender 
signed  on  the  operator  pointing  out  the  place,  it 
was  held,  that  the  operator  was,  for  that  purpose,  the 

receipt  from  a  common  carrier,  the  terms  of  which  limit  the  liability  of 
the  carrier,  he  will  be  presumed  to  kuow  its  content*  and  to  have  as- 
sented thereto.  Belger  v.  Dinsmore,  51  N.  Y.  1GG;  Grace  v.  Adams, 
100  Mass.  507;  s.  C,  1  Am.  Rep.  131;  Rice  v.  Dwight,  2  Gush.  (Mass.) 
87;  Soumet  v.  National  Express  Co.,  GO  Barb.  (N.  Y.)  284.  In  Illinois 
there  is  an  exceptional  rule  on  this  point,  that  the  mere  reception  of 
the  receipt  will  not  amount  to  evidence  of  an  assent  to  the  special  lim- 
itations by  fhe  shipper.  Illinois  Central  It.  Co.  v.  Frankenberg,  54  111. 
88.     See  2  Tbomp.  Tr.  §  18G3  and  notes. 

1  Breese  v.  United  States  Tel.  Co.,  48  N.  Y.  132;  s.  c,  8  Am.  Rep. 
520,  529,  per  Lott,  C,  Com'r.;  s.  C,  Allen  Tel.  Cas.  663.  See  also 
Womack  v.  Western  Union  Tel.  Co.,  58  Tex.  170;  s.  c.,44  Am.  Rep.  614. 


222  STIPULATIONS    LIMITING    LIABILITY. 

sender's  agent,  and  the  company  was  not  liable  for 
the  sender's  failure  to  notice  the  printed  stipula- 
tion as  to  non-liability  save  for  repeated  messages.1 
§  210.  Exceptional  View  that  Actual  Notice  of  the 
Stipulation  must  he  Brought  Home  to  the  Sender. — 
An  exceptional  view  obtains  in  Illinois  to  the  effect 
that  the  mere  writing,  signing  and  delivering,  for 
transmission,  of  a  message  upon  a  blank  furnished 
by  a  telegraph  company,  containing  a  condition 
limiting  its  liability,  does  not  create  a  contract  be- 
tween the  sender  and  the  company,  but  that,  in 
order  to  make  the  condition  binding  upon  the 
sender  or  upon  the  party  for  whom  he  acts  as  agent, 
a  knowledge  of  the  condition  must  be  brought  home 
to  him  by  evidence  aliunde.  "Whether  he  had 
knowledge  of  its  terms  and  assented  to  its  restric- 
tions is  for  the  jury  to  determine,  as  a  question  of 
fact  upon  evidence  aliunde;  and  all  the  circum- 
stances attending  the  giving  the  receipt  are  admissi- 
ble in  evidence  to  enable  the  jury  to  decide  that 
fact."  In  other  words,  the  court  hold  that  the  fact 
that  a  telegram  is  written  on  such  a  blank  does  not 
raise  a  presumption  of  law  or  fact  that  the  plaintiff 
had  knowledge  of  it.  The  telegraph  company,  in 
the  view  of  the  court,  must  show  that  the  sender 
had  such  knowledge,  although  the  court  say  that 
slight  evidence  would  be  sufficient.  Of  this,  how- 
ever, the  jury  and  not  the  court  would  be  the 
judge.'2     This  exceptional  rule  is  adopted  by  analogy 

1  Western  Union  Tel.  Co.  v.  Edsall,  63  Tex.  6G8. 

2  Tyler  v.  Western  Union  Tel.  Co..  60  111.  421;  s.  c,  14  Am.  Rep.  38. 
In  Pennsylvania,  it  has  been  ruled  at  nisi  pruts  that  the  receiver  of  a 
message  is  not  notified  of  the  condition  subject  to  which  it  was  sent,  by 
the  following  indorsement  upon  the  message,  without  more  :  "Western 
Union  Telegraph  Company.     The  rules  of  this  company  require  that 

messages  received  for  transmission  shall  be  written  on  the  message- 


EVIDENCE    OF    KNOWLEDGE    AND    ASSENT.  223 

to  the  rule  which  obtains  in  the  same  State  in  re- 
gard to  conditions  in  the  receipts  or  bills  of  lading 
of  common  carriers,  limiting  their  liability.  In  such 
a  case  the  mere  taking  and  retaining  of  the  receipt  is 
not  of  itself  evidence  of  the  assent  of  the  shipper  to 
the  special  stipulations,  but  his  assent  must  be  other- 
wise affirmatively  shown.1  Some  decisions  of  subordi- 
nate courts  in  New  York2  and  Pennsylvania3  are  in 
conformity  with  the  exceptional  rule  in  Illinois;  but 
these  decisions  do  not  express  the  law  as  declared 
by  the  highest  judicial  tribunals  of  those  States.4 

blanks  of  the  company,  under  and  subject  to  the  conditions  printed 
therein,  which  conditions  have  been  agreed  to  by  the  sender  of  the  fol- 
lowing message.''  This  notification  was  only  that  there  were  regula- 
tions of  the  company,  and  that  thejr  had  been  agreed  to  by  the  sender 
of  the  message.  No  specifications  of  the  nature  of  the  regulations  were 
given  to  the  receiver  of  the  message,  nor  any  caution  that  they  might 
be  important  for  him  to  examine.  There  was  nothing  in  such  a  notice 
to  put  him  upon  inquiry  at  his  peril.  Harris  v.  Western  Union  Tel. 
Co.,  9  Phila.  (Pa.)  S8. 

1  Adam's  Express  Co.  v.  Haynes,  42  111.  S9;  Illinois  Central  R.  Co.  v. 
Frankenberg,  54  111.  SS.  And  see  as  to  stipulations  detached,  as  if  on 
the  back,  etc.,  Brown  v.  Eastern  R.  Co.,  11  Cush.  (Mass.)  97. 

2  Baldwin  v.  United  States  Tel.  Co.,  1  Lans.  (N.  Y.)  125.  The  condi- 
tion in  this  case  is  distinguished  from  that  in  Breese  v.  United  States 
Tel.  Co.,  4S  N.  Y.  132,  in  that  the  printed  matter  was  a  mere  notice 
to  the  sender  that  the  company  would  not  be  responsible  unless  the 
dispatch  should  be  repeated,  and  hence  formed  no  part  of  the  agree- 
ment, being  totalty  disconnected  from  the  message.  The  question, 
however,  was  not  proper]}'  in  the  case,  and  what  was  said  was  obiter. 

3  Harris  v.  Western  Union  Tel.  Co.,  9  Phila.  (Pa.)  SS. 

4  Breese  v.  United  States  Tel.  Co.,  48  N.  Y.  132;  s.  C,  8  Am.  Rep. 
520;  Allen  Tel.  Cas.  663;  Young  v.  Western  Union  Tel.  Co.,  65  N.  Y. 
163;  Passmore  v.  Western  Union  Tel.  Co.,  78  Pa.  St.  238.  In  the  case 
of  Harris  v.  Western  Union  Tel.  Co.,  9  Phila.  (Pa.)  88,  the  court  dis- 
tinguish the  facts  from  those  in  judgment  in  Passmore  v.  Western 
Union  Tel.  Co.,  supra,  in  tliat  in  the  latter  case  the  action  was  brought 
by  the  sender,  who  was  conceded  to  have  had  notice,  whereas  in  the 
case  before  the  court  the  action  was  brought  by  the  receiver,  and  was  in 
form  an  action  in  tort.  The  plaintiff  did  not  know,  so  far  as  the  report 
shows,  of  the  stipulations;  nor  whether  the  message  had  or  had  not 
been  repeated.  The  court  held  that,  as  lie  had  acted  on  it  to  his  dam- 
age, he  was  entitled  to  indemnity. 


2l_)  I  STIPULATIONS    LIMITING    LIABILITY. 

&  211.  View  that  Customer  Bound  to  know  Rules 
of  Company. — In  Maryland,  where  a  telegraph  com- 
pany was  authorized  by  statute  to  contract  in  ac- 
cordance with  its  rules  and  .regulations,  the  view 
was  taken  that  a  person  delivering  to  it  a  message 
for  transmission  "is  supposed  to  know  that  the  en- 
gagements of  the  company  are  controlled  by  those 
rules  and  regulations,  and  does  himself,  in  law, 
engraft  them  in  his  contract  of  bailment,  and  is 
bound  by  them."  '  "This  would  be  the  case,"  the 
same  court  has  said,  "whether  the  dispatch  offered 
for  transmission  be  expressly  declared  to  be  subject 
to  the  terms  and  conditions  prescribed  or  not. 
Those  dealing  with  the  company  must  be  supposed 
to  know  its  rules  and  regulations,  and  their  contract 
must  be  taken  to  have  reference  to  them,  unless 
otherwise  provided  by  special  contract."2 

§212.  Unsoundness  of  this  View. — It  IS  submitted 
that  these  views  are  entirely  misconceived.  All 
corporations  have  the  faculty  of  making  reasonable 
by-laws  for  the  transaction  of  their  business.  These 
by-laws  are  in  the  nature  of  private  instruments  for 
the  regulation  of  their  directors,  managing  officers 
and  servants.  They  are  not  known  to  the  public, 
and,  both  on  principle  and  authority,  the  public  are 
not  charged  with  knowledge  of  them  unless  notice 
of  them  is  expressly  communicated.  The  better 
view  is  that,  if  the  conditions  are  not  printed  on  the 
blank  on  which  the  message  is  in  fact  written  for 
transmission,  a  knowledge  of  them  must  be  brought 
home  to   the  sender  by  the  defendant  by  other  evi- 

1  Birney  v.  New  York,  etc.  Tel.  Co.,  IS  Md.  341 ;  s.  C,  SI  Am.  Dec. 
607;  Allen  Tel.  Cas.  195;  reaffirmed  in  United  States  Tel.  Co.  v.  Gilder- 
sieve,  29  Md.  232;  s.  C,  96  Am.  Deo.  519;  Allen  Tel.  Cas.  403. 

2  United  States  Tel.  Co.  v.  Gildersleve,  supra,  opinion  by  Alvey,  J. 


EVIDENCE    OF    KNOWLEDGE    AND    ASSENT.  225 

dence.1      When,    therefore,    there    was    a    question 
whether    the   person    sending  the  message   used   a 
blank  of  the  company  containing  its  printed   condi- 
tions, or  whether  this  blank  was  used   by  an   agent 
of  the  company  in  copying  a  message  handed  in  by 
the  sender  on  a  plain  piece  of  paper,  it  was  held 
that   the  question  of  the  liability  of  the  company 
must  turn  on  the  findings  of  fact  in  the  trial  court.2 
In  another  case  the  message,  as  accepted  for  trans- 
mission, was  written  on  a  sheet  of  common  white 
paper.     It  was  held  that  the  sender  was  not  charged 
with  notice  of  or  assent  to  regulations  of  the  com- 
pany printed  upon  its  blanks,  without  proof  that 
he  knew  what  they  were ;   and  that  the  fact  that  he 
was   familiar  with  the  general  appearance  of  the 
blanks,  and  that  bundles  of  them  lay  in  his  office, 
and  that  he  was  in  the  habit  of  using  them,  did  not 
estop  him  from  denying  any  knowledge  of  the  reg- 
ulations ;  nor  was  he,  simply  as    a    stockholder  in 
the  telegraph  company,  bound  to  know  such  rules 
and  regulations,  merely  because  they  were  recorded 
on  the  minute  books  of  the  corporation.3     Another 
court  has  taken  the  view  that,  although  a  telegraph 
company's  rules  prohibit  its  agents  from  receiving 
messages   written    otherwise   than    on   its   printed 
blanks,  a  sender  ignorant  of  the  prohibition  is  not 
bound  thereby,  and  hence  where  the  agent,  without 
the  sender's  request,  copies  a  message  written  on 

1  De  Rutte's  Case,  1  Daly  (X.  Y.),  547;   s.  c,  30  How.  Pr.  (N.  Y.) 
403. 

2  Beasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Eep.  181. 

3  Pearsall  v.  Western  Union  Tel.  Co., 44  Hun  (N.  Y.),  532;  s.  c,  9  N. 
Y.  St.  Rep.  132. 

(15) 


220  STIPULATIONS    LIMITING     LIABILITY. 

ordinary  paper  onto  a  blank,  the  sender  will  not  be 
bound  by  the  stipulations  in  the  blank.1 

§  213.      View  that   Sender    is    Bound  by   the  Rules 
of    whose    Existence    He    has-  Knowledge. — In    one 

case,  the  view  is  expressed  that  a  person  sending  a 
message  by  telegraph,  who  knows  of  the  existence 
of  certain  rules  and  regulations  adopted  by  the  tel- 
egraph company  touching  the  transmission  of  mes- 
sages, is  as  much  bound  by  them  as  if  he  had 
written  his  message  on  a  blank  prepared  by  the 
company,  containing  such  rules.2  Where  the  blanks 
furnished  by  the  company,  on  one  of  which  the 
message  in  question  was  written,  had  been  for  some 
time  in  the  possession  of  the  sender,  which  blanks 
contained  an  agreement  between  the  signer  and  the 
company  that  the  company  would  not  be  responsible 
for  any  error  in  the  transmission  of  the  dispatch 
unless  it  was  repeated,  the  sender  was  conclusively 
presumed  to  have  been  acquainted  with  the  con- 
tents of  the  blank  form,  and  to  have  accepted  them, 
and  was  estopped  from  denying  or  disputing  the 
agreement.  The  governing  principle  was,  that  a 
contract  voluntarily  executed  by  a  party,  in  the 
absence  of  misrepresentation  or  fraud,  with  full  op- 
portunity to  inform  himself  as  to  its  contents,  cannot 
be  avoided  on  the  ground  of  his  negligence  or  omis- 
sion to  read  it,  or  to  avail  himself  of  the  information 
contained  in  it.3 

JBeasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Rep.  181.  Com- 
pare Western  Union  Tel.  Co.  v.  Foster,  64  Tex.  220;  s.  c,  53  Am. 
Rep.  754. 

2  Western  Union  Tel.  Co.  v.  Buchanan,  35  Ind.  429;  s.  C,  9  Am.  Rep. 
744,  74S.  In  this  case,  the  message  was  written  on  the  back  of  a 
business  card. 

3  Breese  v.  United  States  Tel.  Co.,  48  X.  Y.  132  (affirming  s.  c,  45 
Barb.  (X.  Y.)  274;  31  How.  Pr.  (X.  Y.)  86). 


STIPULATIONS    AS    TO    REPEATING.  227 


Article  III.— STIPULATIONS  AS  TO  REPEATING. 

Section. 

217.  Reasonableness  of   Regulation  Requiring  Message  to  be   Re- 

peated. 

218.  Does  not  Excuse  Negligence  or  Other  Fault. 

219.  Exempts  it  only  from  Risks  beyond  its  Control. 

220.  Incongruity  of  this  Rule. 

221.  Effect  on  the  Burden  of  Proof  and  Evidence. 

222.  Comments  on  these  Opposing  Views. 

223.  Excuses  Mistakes  not  Arising  from  Gross  Negligence. 

224.  This  View  as  Understood  in  Massachusetts. 

225.  Further  of  the  Massachusetts  Doctrine. 

226.  The  Same  View  Taken  in  New  York. 

227.  This  Rule  as  Understood  in  Kentucky. 

228.  View  that  Condition  as  to  Repeating  Exonorates  only  from  Lia- 

bility for  Errors  Preventible  by  Repeating. 

229.  Illustrations  of  this  View. 

230.  Illustrations  Continued. 

231.  Cases  of  Exoneration  under  this  Rule. 

232.  Continued. 

233.  Releases  Liability  for  Mistakes  of  Connecting  Line. 

234.  But  does  not  Exonerate  Connecting  Line. 

235.  Simpler  View  that  such  Stipulations  are  Void. 

236.  Reasons  Given  for  this  View. 

237.  Receiver  of  Message  under  no  Obligation  to  have  it  Repeated. 

238.  What  Amounts  to  a  Request  to  have  the  Message  Repeated. 

239.  Waiver  of  such  Stipulation  a  Question  for  Jury. 

240.  Such  Stipulations  Apply  only  to  the  Message — not  to  the  Date. 

241.  Considerations  Showing  that  the  Condition  as  to  Repeating  is  a 

mere  Sham. 

§  217.  Reasonableness  of  Regulation  Requiring- 
Message  to  be  Repeated. — A  regulation  of  such  a 
company,  to  which  the  senders  of  messages  are  re 


228  STIPULATIONS    LIMITING    LIABILITY. 

quired  to  assent,  that  the  company  will  not  be  re- 
sponsible for  errors  in  the  transmission  of  messages 
which  are  not  repeated,  has  been  held  reasonable 
within  the  limits  hereafter  stated.1 

<^)  218.  Does  not  Excuse  Negligence  or  Other  Fault. — 
Several  courts  have  limited  the  rule  by  holding  that 
such  companies  cannot,  by  such  stipulations,  relieve 
themselves  from  the  consequences  of  their  own  fault, 
such  as  want  of  proper  skill  and  care  on  the  part  of 
their  operators,  or  the  use  of  defective  instruments. 
As  thus  limited,  the  rule  extends  only  so  far  as  to 
relieve  the  company  from  mistakes  occasioned  by 
uncontrollable  causes,  such  as  atmospheric  electric- 
ity, and  this  only  when  it  appears  that  such  mis- 
takes could  not  have  been  guarded  against  or 
prevented  by  the  exercise  of  ordinary  care  and  skill 
on  the  part  of  the  operating  agents  of  the  company.2 

1  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525;  s.  C,  2 
Tbomp.  Neg.  828;  Birney  v.  New  York,  etc.  Tel.  Co.,  18 
Md.  341;  Breese  v.  United  States  Tel.  Co.,  45  Barb.  (N.  Y.),  274; 
s.  c,  31  How.  Pr.  (N.  Y.),  86  (affirmed,  48  N.  Y.  132);  Redpath  v. 
Western  Union  Tel.  Co.,  112  Mass.  71 ;  Grinnell  v.  Western  Union 
Tel.  Co.,  113  Mass.  299;  Passmore  v.  Western  Union  Tel.  Co.,  78  Pa. 
St.  238;  affirming  s.  c,  9  Phila.  (Pa.;  90;  McAndrew  v.  Electric 
Tel.  Co.,  17  C.  B.  3;  Sweetland  v.  Illinois,  etc.,  Tel.  Co.,  27  Iowa,  433; 
M.mville  v.  Western  Union  Tel.  Co.,  37  Iowa,  214;  Wann  v.  Western 
Union  Tel.  Co.,  37  Mo.  412;  Camp  v.  Western  Union  Tel.  Co.,  1  Mete. 
(Ky.)  164;  s.  c,  71  Am.  Dec.  461;  Ellis  v.  American  Tel.  Co.,  13  Allen 
(Mass.),  226;  DeEutte  v.  New  York,  etc.  Tel.  Co.,  IDaly  (N.  Y.),  547, 
559;  Young  v.  Telegraph  Co.,  65  N.  Y.  163;  Western  Union  Tel.  Co.  v. 
Fenton,  52  Ind.  1;  Gulf,  etc.  R.  Co.  v.  Wilson,  69  Tex.  739;  s.  c.,7S.W. 
Rep.  653;  Western  Union  Tel.  Co.  v.  Stevenson,  128  Pa.  St.  442;  s.  c,  5 
L.  R.  A.  515;  24  W.  N.  C.  497;  s.  c,  18  Atl.  Rep.  441;  United  States 
Tel.  Co.  v.  Gildersleve,  29  Md.  232;  s.  c,  96  Am.  Dec.  519; 
Bennett  v.  Western  Union  Tel.  Co.,  2  N.  Y.  Supp.  365;  s.  c,  18 
N.  Y.  State  Rep.  777;  Lassiter  v.Tel.  Co.,  89  N.C.  334;  Western  Union 
Tel.  Co.  v.  Hearn,  77  Tex.  83;  s.  c,  13  S.  W.  Rep.  970.  Contra,  Seiler 
v.  Western  Union  Tel.  Co.,  3  Am.  L.  Rev.  777,  a  nisi  prius  case.  See 
a  note  on  this  subject,  collecting  American  decisions,  21  Am.  &  Eng. 
Corp.  Cas.  85. 

2  Sweetland  v.  Illinois,  etc.  Tel.  Co..  27  Iowa,  433;    Marr  v.  Western 


STIPULATIONS    AS    TO    REPEATING.  229 

§    219.      Exempts    it   only    from    Risks    beyond    its 

Control. — A  condition  printed  upon  the  blank  on 
which  a  telegraphic  message  is  written  for  transmis- 
sion, exempting  the  company  from  liability  for  er- 
rors in  case  the  message  is  not  repeated,  is  held  by 
one  court. to  exempt  it  only  from  errors  arising  from 
causes  beyond  its  control.  In  other  words,  in  this 
view  it  has  no  operation  at  all;  since  there  is  no 
rule  of  law  that  casts  upon  a  telegraph  company 
the  responsibility  of  risks  beyond  its  control.  Such 
a  rule  would  make  it  an  insurer;  and,  as  we  have 
already  seen,2  all  courts  agree  that  it  is  not  an  in- 
surer. 

§  220.  Incongruity  of  this  Rule. — The  doctrine 
of  the  courts  so  holding  seems  to  involve  an  absurd- 
ity. They  start  out  on  the  premise  that  a  telegraph 
company  is  not  a  common  carrier,  and  is  only  liable 
for  negligence  or  willful  misconduct.  They  next  state 
that  such  a  company  may  make  reasonable  rules  lim- 
iting its  liability.  They  end  by  stating  that  it  can- 
not make  rules  limiting  its  liability  for  negligence. 
But,  as  it  is  only  liable  for  negligence,  or,  what  is 
worse,  for  willful  misconduct  or  bad  faith,  this  is 
equivalent  to  saying  that  it  cannot  make  rules  lim- 
iting its  liability  at  all.  If  it  is  said  that  the  con- 
cession to  such  a  company  of  the  right  to  make  rea- 
sonable rules  limiting  its  liability  means  that  it  may 
protect  itself  from  errors  incident  to  the  imperfec- 
tion   of  the    art  and    to    atmospheric    causes,    the 

Union  Tel.  Co.,  85  Tenn.  529;  S.  C,  3  S.  W.  Rep.  496;  Pepper  v.  West- 
ern Union  Tel.  Co.,  87  Tenn.  554;  s.  C,  11  S.  W.  Rep.  783  ;  Thompson  v. 
Western  Union  Tel.  Co.,  64  Wis.  531 ;  s.  C,  54  Am.  Rep.  644.  Compare 
Thompson  v.  Western  Union  Tel.  Co.,  106  N.  C.  549;  s.  c,  11  S.E.Rep. 
269;  30  Am.  &  Eng.  Corp.  Cas.  634. 

1  Western  Union  Tel.  Co.  v.  Tyler,  74  111.  168;  s.  c,  24  Am.  Rep.  279. 

2  Ante,  §  137. 


230  STIPULATIONS    LIMITING    LIABILITY. 

answer  is,  that  if  it  is  only  liable  for  negligence,  it 
is  nol  Liable  at  all  for  errors  thus  produced.  If  it  is 
said  thai  such  a  concession  intends  to  enable  it  to 
protect  itself  from  liability  for  the  errors  of  other 
com  panics  over  whose  lines  it  is  olliged  to  send 
messages,  the  answer  is.  that  it  is  not  liable  for  the 
errors  of  other  companies,  unless  it  assumes  such 
a  liability  by  contract.1  Of  what  value,  then,  is  the 
rule,  as  thus  expounded? 

§  221-  Effect  on  the  Burden  of  Proof  and  Evi- 
dence.— In  some  of  the  cases  it  is  held  that  one  of 
the  effects  of  such  a  stipulation  is  to  cast  upon  the 
sender  of  the  message  the  burden  of  proving  negli- 
gence by  other  evidence  than  the  mere  fact  of  the 
mistake,'  as  where  the  error,  unexplained,  consisted 
in  writing  "sixty"  lor  "fifty."  s  Accordingly  it  has 
been  held  proper,  in  an  action  presenting  such  a 
state  of  facts,  to  instruct  the  jury  in  these  words  : 
"  If  there  were  such  rules  and  regulations,  so  as- 
sented to,  the  mere  fact  that  there  was  an  error  in 
the  message  as  delivered,  would  not,  of  itself,  with- 
out further  proof  of  carelessness,  be  sufficient  to  au- 
thorize the  plaintiff  to  recover  anything  beyond  the 
price  of  the  message  and  interest  thereon."  4  Other 
courts  have  taken  the  juster  and  sounder  view  that, 

lPo*t.  i  264. 

-  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433;  Womack  v.  Western 
Union  Tel.  Co.,  58  Tex.  176;  s.  c  44  Am.  Rep.  614;  Becker  v.  Western 
Union  Tel.  Co.,  11  Xeb.  87;  s.  c,  3S  Am.  Rep.  356.    This  is  also  under - 

91 1  to  be  the  logic  of  the  decision  in  Gulf,  etc.   R.  Co.  v.  Wilson,  69 

Tex.  759;  S.  <..  7  S.  W.  Rep.  G53.  Substantially  the  same  ruling  was 
made  in  South  Carolina,  in  regard  to  a  stipulation  on  the  blank  of  a 
night  message,  against  liability  beyond  the  amount  paid  by  the  sender. 
Aiken  v.  Telegraph  Co..  5  S.  <  ar.  358,  :>77. 

3  Becker  v.  Western  l'nion  Tel.  Co..  11  Neb.  87;  S.  C,  3S  Am.  Rep. 
356. 

•  lb 


STIPULATIONS    AS    TO    REPEATING.  231 

in  such  a  case,  an  error  in  transmiting  the  message 
being  proved,  the  onus  is  on  the  compan}^  of  prov- 
ing that  it  arose  from  causes  beyond  its  control.1 

§  222.  Comments  on  these  Opposing-  Views. -«— 
Beyond  all  que'stion,  the  rule  of  evidence  in  ordi- 
nary cases  of  bailment  and  other  contractual  en- 
gagements to  perform  services  is  that  the  unexplained 
failure  of  the  undertaker  to  perform  the  services  which 
he  has  undertaken  to  perform,  is  evidence  of  negli- 
gence on  his  part,  in  conformity  with  the  maxim  res 
ipsa  loquitur.2  The  view  which  ascribes  to  such  a  stip- 
ulation the  effect  of  requiring  the  plaintiff  to  prove 
negligence  by  other  evidence  than  the  evidence  of 
the  undertaking  and  of  the  default  in  its  perform- 
ance, therefore,  has  the  effect  of  changing  the  rule 
of  evidence  in  favor  of  the  undertaker  who  has  been 

1  Western  Union  Tel.  Co.  v.  Tyler,  74  111.  168;  s.  c,  24  Am.  Kep.  279; 
s.  C,  on  former  appeal,  60  111.  421;  14  Am.  Rep.  3S;  Bartlettv.  Western 
Union  Tel.  Co.,  62  Me.  209:  s.  c,  16  Am.  Rep.  437.  The  subject  was 
thoroughly  considered  by  the  Supreme  Court  of  Illinois,  in  a  case  twice 
before  it,  and  the  rule  announced  by  the  court  was,  that  the  usual  regu- 
lations exempting  telegraph  companies  from  liability  for  errors  in  un- 
repealed messages  exempt  them  only  from  liability  for  errors  arising 
from  causes  beyond  their  control;  and  that,  the  inaccuracy  of  the  mes- 
sage being  proved,  the  onus  of  relieving  themselves  from  the  presump- 
tion of  negligence  thereby  raised  rests  upon  the  company.  As  to  every 
thing  beyond  this,  such  a  contract  was  said  to  be  against  public  policy, 
without  consideration,  and  void.  Tyler  v.  Western  Union  Tel.  Co.,  60 
111.421;  s.  c,  74  111.  168;  Rittenhouse  v.  Independent  Line  of  Tele- 
graph, 44  N.  Y.  263 ;  New  York,  etc.  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  29S ; 
Western  Union  Tel.  Co.  v.  Fontaine,  58  Ga.  433,437, per  Warner,  J.;  De 
Rutte  v.  New  York,  etc.  Tel.  Co.,  1  Daly  (N.  Y.),  547,  559;  De  La  Grange 
v.  Southwestern  Tel.  Co.,  25  La.  An.  383.  It  has  been  held  in  Louisiana 
that  where  a  message  has  been  delivered  to  a  company  which  may  be 
designated  A.,  and  passed  over  a  wire  to  a  company  which  may  be  des- 
ignated B..  and  is  by  B  company  communicated  to  the  person  to  whom 
it  is  addressed  in  a  garbled  state,  and  such  person  brings  an  action  for 
the  resulting  damages  against  B.  company,  the  burden  is  upon  B.  com- 
pany to  show,  if  it  can,  that  the  error  was  the  error  of  A.  company,  and 
that  the  message  was  by  it  delivered  as  it  was  received  from  A.  com- 
pany.   De  l/i  Grange  v.  Southwestern  'I'd.  Co.,  25  La.  An.  383. 

2  Post,  i  -J7::. 


232  stipulations  limiting  liability. 

guilty  of  the  default.  It  must  also  be  obvious,  on 
a  little  reflection,  that  it  has  the  effect  in  nearly 
every  case — practically  in  all  cases — of  exonerating 
the  company,  no  matter  how  great  its  negligence 
may  be,  Suppose,  for  instance,  that  one  word  has 
been  substituted  for  another,  so  as  to  make  the  mes- 
sage, as  delivered  to  the  addressee,  essentially  differ- 
ent from  the  message  as  delivered  to  the  operator 
to  be  sent,  how  can  the  unlucky  sender  ever 
prove,  beyond  the  fact  that  the  substitution  was 
made,  that  it  was  done  by  the  negligence — much 
less  by  the  gross  negligence,  according  to  the  rule  in 
some  courts, — of  the  servants  of  the  telegraph  com- 
pany ?  By  what  other  evidence  shall  he  negative  the 
conclusion,  absurd  on  its  face,  that  the  mistake  may 
have  been  due  to  "atmospheric  conditions?  ';  Or, 
if  it  were  practical,  in  a  supposed  case,  to  prove  that 
an  error  in  transmitting  a  dispatch  happened  through 
the  negligence  of  some  of  its  operators,  and  not  in 
consequence  of  atmospheric  conditions,  how  could 
the  luckless  plaintiff  ever  find  out  what  operator  or 
operators  had  charge  of  the  transmission  of  his  par- 
ticular message  ?  But  if  he  should  chance  to  find 
the  one,  how  could  he  fasten  on  him  the  imputation 
of  negligence  by  his  own  testimony?  Would' any 
such  operator  give  a  deposition  to  the  effect  that  he 
had  misread  the  message?  These  considerations 
show  that  the  rule  that  the  plaintiff  must  prove 
negligence  by  other  evidence  than  the  fact  of  the  mis- 
take, is  tantamount,  in  nearly  every  case,  to  depriv- 
ing him  of  all  remedy,  no  matter  how  gross  the  negli- 
gence of  the  defendant  may,  in  fact,  have  been.  The 
strange  manner  in  which  the  courts  have  dealt  with 
this  question  is  strikingly  illustrated  by  a  case  which 


STIPULATIONS    AS    TO    REPEATING.  233 

holds  that  the  telegraph  company  is  liable  for  the 
failure  to  use  ordinary  care,  and  which,  at  the  same 
time,  refuses  to  permit  the  plaintiff  to  prove  the 
want  of  ordinary  care  by  evidence,  which,  in 
other  situations,  is  ordinarily  sufficient  in  law  for 
that  purpose.1  In  this  discussion,  the  reader  need 
scarcely  be  cautioned  that  the  term  "evidence  of 
negligence"  has  reference  only  to  the  sufficiency  of 
the  evidence  as  matter  of  law ;  that  is,  it  does  not 
mean  that  it  is  conclusive,  but  only  that,  where  the 
plaintiff  produces  it,  he  is  entitled  to  have  the  case 
go  to  the  jury. 

§  223.  Excuses  Mistakes  not  Arising-  from  Gross 
Negligence. — In  the  earliest  case  on  the  subject,2 
there  is  a  dictum  to  the  effect  that  it  is  competent 
for  such  a  company  to  establish  regulations  limit- 
ing its  liability  for  all  mistakes  consequent  upon 
the  sender  of  the  message  not  pa}Ting  for  having  it 
repeated,  except  those  arising  from  gross  negligence; 
and  several  American  courts,  with  this  case  appa- 
rently in  mind,  have  stated  the  rule  to  be,  that 
while  such  companies  may  establish  reasonable  reg- 
ulations, they  cannot  make  rules  relieving  them- 
selves from  liability  for  the  gross  negligence  of  their 
agents.  The  view  of  these  courts,  substantially,  is 
that  such  stipulations  will  relieve  the  company,  in 

1  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433;  s.  c,  1  Am.  Rep. 
285.  See  also  Manville  v.  Western  Union  Tel.  Co.,  37  Iowa,  244;  s.  c, 
18  Am.  Rep.  8.  In  the  former  of  these  cases,  three  propositions  are  un- 
derstood to  have  been  decided-  1.  That  such  a  stipulation  as  the  one 
under  discussion  is  a  reasonable  one.  2.  That  it  does  not  exonerate 
the  company  from  the  obligation  of  using  ordinary  or  reasonable  care. 
3.  But  that  the  plaintiff  must  show  a  failure  to  use  ordinary  or  reason- 
able care  by  other  evidence  than  the  failure  to  transmit  the  message 
correctly.  The  cunning  lawyer  who  devised  the  stipulation  on  the 
message  blank  could  ask  for  no  better  rule. 

-  McAndrew  v.  Electric  Tel.  Co.,  17  C.  B.  :i. 


234  STIPULATIONS    LIMITING    LIABILITY. 

case  the  dispatch  is  not  repeated,  from  liability  for 
a  failure  in  the  undertaking  of  the  company,  which 
might  have  sprung  from  not  repeating  the  message, 
where  such  failure  is  not  caused  by  gross  negligence, 
willful  misconduct  or  bad  faith  of  the  company  or  of 
it-  agents.1  But,  as  already  suggested,2  the  expres- 
sion "gross  negligence"  is  believed  to  convey 
to  the  mind  no  accurate  legal  conception.3  It 
was  stated  by  Mr.  Baron  Rolfe,  that  what  is 
t rimed  gross  negligence  is  no  more  than  ordinary 
negligence  with  an  epithet;4  and  courts  have  fre- 
quently denied  the  soundness  of  the  distinction  be- 
tween ordinary  negligence  and  gross  negligence.5 
The  distinction  seems  to  be  destitute  of  any  practi- 
cal value  in  the  administration  of  justice,  except  in 
those  cases  where,  under  a  rule  such  as  prevails  in 
Illinois  and  Georgia,  the  negligence  of  two  per- 
sons, concurring  to  produce  the  same  accident,  are 

'  McAndrew  v.  Electric  Tel.  Co.,  17  C.  B.  3;  s.  c,  33  Eng.  L.  &  Eq. 
ISO;   Bart  v.  Western  Union  Tel.  Co.,  66  Cat.  579;  s.  C.,  6  West.  Coast 
Rep.  19,5;   Allen  Tel.  Cas.  390;  Ellis  v.  American  Tel.  Co.,  13   Allen 
(Mass.).  226;  S.  C,  Allen  Tel.  Cas.  306;  17  Am.  Rep.  69;  Redpath  v. 
Western  Union  Tel.  Co.,  112  Mass.  71;  s.  c,  17  Am.  Rep.  69;  Griunell  v. 
Western  Union  Tel.  Co.,  113  Mass.  299;  s.  C.  18  Am.  Rep.  485;  Clement 
v.  Western  Union  Tel.  Co..  137  Mass.  463;  s.  C,  24  Am.  L.  Reg.  328; 
Carew  v.  Western  Union  Tel.  Co.,  15  Mich.  525;  s.  c,  Allen  Tel.  Cas. 
3  15;  2  Thomp.  Neg.  829;  Wann  v.  Western  Union  Tel.  Co..  37  Mo.  472; 
s.  C,  Allen  Tel.  Cas.  261;  Backer  v.  Western  Union  Tel.  Co.,  11  Neb. 
87;  S.  C,  3S  Am.  Rep.  356;    Breese  v.  United  States  Tel.  Co.,  45  Barb. 
X.  Y.    27  I :  S.  C,  affirmed,  48  N.  Y.  132;  S.  C,  8  Am.  Rep.  526;  Allen 
Tel.  Cas.  663:  Lassiter  v.  Western  Union  Tel.  Co.,  89  XT.  C.  334;  Pass- 
more  v.  Western  Union  Tel.  Co..  9  Pbila.  (Pa.)  90;  S.  c,  affirmed,  78 
Pa.  St.  238;  Womack  v.  Western  Union  Tel.  Co.,  58  Tex.  176;  S.  c,  44 
Am.   Rep.  614;  Western   Union   Tel.  Co.    v.  Catcbpole.  Whiie    &  W. 
(Tex.)  268;  Baxter  v.  Dominion  Tel.  Co.,  37  Up.  Can.  Q.  B.  470;  Camp 
v.  Western  Union  Tel.  Co.,  1  Mete.  (Ky.)  164. 
-  Ante,  §140. 

Aiken  v.  Telegraph  <  o..  5  S.  C.  358,  37S. 
1  Wilson   v.  Brett.  11  Mees.  iV  W.  113,  cited  with  approval  by  Willes, 
J.,  in  Grill  v.  General,  etc.  Collier  Co..  L.  R.  1  C.  P.  600,  612. 
3herm.  &  Redf.  on  Neg.,  Sec.  16. 


STIPULATIONS    AS    TO    REPEATING.  235 

brought  into  comparison  with  each  other.1  In  the 
leading  case  in  Iowa,  already  alluded  to,2  it  is  as- 
serted that  such  a  company  cannot  make  rules 
relieving  itself  from  liability  for  a  failure  to  exercise 
ordinary  care.  It  has  been  held  gross  negligence  in 
a  telegraph  company,  to  have  in  its  employ  an  oper- 
ator who  did  not  know  of  the  existence  of  a  town 
adjoining  the  county-seat  of  a  neighboring  county, 
in  consequence  of  which  the  dispatch  was  sent  to 
another  town  and  lost.3 

§  224.  This  View  as  Understood  in  Massachusetts. — 
The  blank  forms,  on  which  messages  of  the  Western 
Union  Telegraph  Company  were  transmitted,  con- 
tained the  following  condition:  "To  guard  against 
mistakes,  the  sender  of  a  message  should  order  it 
repeated,  that  is,  telegraphed  back  to  the  original 
office.  For  repeating,  one-half  the  regular  rate  is 
charged  in  addition.  And  it  is  agreed  between  the 
sender  of  the  following  message  and  this  company, 
that  the  said  company  shall  not  be  liable  for  mis- 
takes or  delays  in  the  transmission  or  delivery,  or 
for  non-delivery  of  any  unrepeated  message,  beyond 
the'  amount  received  for  sending  the  same,  nor  for 
mistakes  or  delays  in  the  transmission  or  delivery,  or 


1  In   North  Carolina,  where  the  so-called  doctrine  of  "comparative 
negligence"  is  understood  not  to   have  obtained,  this  idle  distinction 

etween  ordinary  negligence  and  gross  negligence  is  kept  up.  and  ap- 
pears in  a  holding  to  the  effect  that  a  telegraph  company  may  exempt 
itself  from  liability  for  ordinary  negligence  in  sending  unrepeated  mes- 
sages, but  not  against  gross  negligence.  Pegram  v.  Western  Union  Tel. 
Co.,  97  N.  C.  57.  And  the  same  court  has  held  that  he  cannot  even  re- 
cover the  cost  of  the  message,  where  the  terms  of  the  contract  exempt 
the  company  from  liability,  without  proof  of  negligence.  Thompson  v. 
Western  Union  Tel.  Co.,  106  N.  C.  549;  s.  c,  11  S.  E.  Rep.  269;  30  Am. 
&  Eng.  Corp.  Cas.  634. 

2  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433,  452. 
:;  Western  Union  Tel.  Co.  v.  Buchanan,  35  Ind.  429. 


236  STIPULATIONS    LIMITING    LIABILITY. 

for  non-delivery  of  any   repeated  message  beyond 
fifty  times  the  sum  received  for  sending  the  same, 
unless  specially  insured;  nor  in  any  case  for  delays 
arising  from  unavoidable  interruption  in  the  work- 
ing of  their  lines,  or  for  errors  in  cipher  or  obscure 
messages.     And  this  company  is  hereby  made  the 
agents  of  the   sender,  without   liability,  to  forward 
any  message  over  the  lines  of  any  other  company, 
when  necessary  to  reach   its   destination.     Correct- 
ness in  the  transmission  of  messages  to  any  point  on 
the  lines  of  this  company  can  be  insured  by  contract 
in  writing,  stating  agreed  amount  of  risk,  and  pay- 
ment of  premium  thereon  at  the  following  rates,  in 
addition  to  the  usual  charge  for  repeated  messages, 
viz:  one  per  cent,   for  any   distance   not  exceeding 
1,000  miles,  and  two  per  cent,  for  greater  distance. 
No  employee  of  the  company  is  authorized   to  vary 
the  foregoing.     The  company  will  not  be  liable  for 
damages  in  any  case  where  the  claim  is  not  presented 
in  writing  within  sixty  days  after  sending  the  mes- 
sage.'"    It  has  been  held  that  the  above  condition 
exonerates   the   telegraph   company  from  ordinary 
care,  attention  and  skill  in  the  transmission  of  unre- 
peated  messages,  but  leaves  them  liable  only  in  case 
they  have  been  guilty  of  fraud  or  gross  negligence,  or 
where  the  error  is  of  such  a  character  that  the  com- 
pany cannot  legally  contract  for  its  own  protection 
against  liability  for  it,  on  such  terms  as  the  printed 
condition  contains — the  court  not  stating  what  errors 
will  be  of  this  character.1     In  the  earlier  case  there 
is  a  declaration  of  Chief  Justice  Bigelow  to  the  effect 
that  it   would  be  a  question   of  fact  for  the  jury 

]  Redpath  v.  Western  Union  Tel.  Co.,  112  Mass.  71 :  S.  C,  17Arn.  Rep. 
69;  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.),  226. 


STIPULATIONS    AS    TO    REPEATING.  237 

whether  the  mistake  in  the  dispatch  would  have 
been  prevented  or  corrected  by  repeating  it;1  but  it 
was  distinctly  ruled  in  a  subsequent  case  in  that 
court,  that  this  was  not  the  law,  and  that  evidence 
is  not  admissible  that  the  repetition  of  the  dispatch 
would  not  have  disclosed  the  error;  '  'since  the  plaint- 
iff, having  omitted  to  fulfill  the  condition  on  which 
alone,  by  the  terms  of  the  contract  between  the  par- 
ties, he  could  recover  for  any  mistake  in  transmis- 
sion more  than  the  amount  of  his  original  payment, 
cannot  be  permitted  to  prove  that  his  own  failure 
to  fulfill  the  contract  did  not  affect  the  result."2 

§  225.  Further  of  the  Massachusetts  Doctrine. — 
In  a  still  later  case  in  the  same  State,  it  has  been 
held  that  such  a  stipulation  as  that  above  set  out, 
avoids  liability  for  an  unexplained  delay  in  deliver- 
ing the  message,  on  the  part  of  the  messenger  boy  of 
the  company,  to  whom  it  was,  after  its  receipt  at  the 
office  to  which  it  was  telegraphed,  entrusted  for  de- 
livery. It  is  fair  to  the  court  so  holding,  to  state  the 
reasoning  upon  which  this  extraordinary  decision 
was  made.  Morton,  C.  J.,  in  giving  the  opinion  of 
the  court,  said:  "It  may  be  that  the  company 
might  be  guilty  of  some  fraudulent  or  gross  negli- 
gence in  transmitting  or  delivering  a  message,  so 
that  it  would  not  be  protected  by  its  regulation  from 
liability  for  the  actual  damages,  though  in  excess  of 
the  sum  stipulated.  But  the  negligence  of  the  mes- 
senger boys,  in  delivering  messages,  was  plainly  con- 
templated by  the  parties  when  they  entered  into  the 
stipulation;  and  there  are  no  principles  of  public 
policy  which  would  prevent  the  company  from  stip- 

1  Ellis  v.  American  Tel.  Co.,  13  Allen,  226,  238. 

2  Grinnell  v.  Western  Union  Tel.  Co.,  113  Mass.  299,  306. 


238  STIPULATIONS    LIMITING    LIABILITY. 

ulating  that  it  will  not  be  responsible  for  such  neg- 
ligence beyond  a  fixed  amount,  unless  it  receives  a 
rcason.i l>lc  compensation  for  assuming  further  re- 
sponsibility.'" It  is  submitted  to  the  profession, 
that  there  is  no  sense  whatever  either  in  this  conclu- 
sion or  in  this  reasoning.  Plainly,  such  a  stipula- 
tion should  be  allowed  to  excuse  only  those  mistakes 
or  delays  which  may  be  shown  to  be  due  to  the  fail- 
ure to  have  the  message  repeated,  such  as,  having 
regard  to  the  imperfections  of  telegraphy,  might  be 
regarded  as  due  proximately  to  such  failure.  The 
repeating  of  the  message  back  to  the  office  from 
which  it  was  sent,  would  have  no  tendency  whatever 
to  stimulate  the  diligence  of  the  messenger  boy,  in 
carrying  a  copy  of  it  from  the  office  to  which  it  was 
sent  to  the  residence  or  place  of  business  of  the  per- 
son addressed. 

§  226.  The  Same  View  taken  in  New  York. — The 
same  view  has  been  taken  in  New  York,  as  will  ap- 
pear from  a  late  case,  in  which  it  appeared  that  the 
plaintiff  had,  for  many  years,  extensively  used  the 
defendant's  blanks  in  sending  telegrams,  and  was 
familiar  with  their  contents.  These  blanks  had 
printed  at  the  top,  a  provision  that  the  company 
should  not  be  liable  for  mistakes,  delays  or  the  non- 
delivery of  any  unrepeated  message,  beyond  the 
amount  received  for  sending  the  same,  and  at  the 
bottom,  a  notice  calling  attention  to  the  agreement. 
In  an  action  to  recover  damages  for  failure  to  deliver 
a  message  written  upon  one  of  these  blanks,  and  de- 
livered by  the  plaintiff  to  one  of  the  defendant's 
operators,  and  sent  by  him,  which  the  plaintiff  had 

1  Clement  v.  Western  Union  Tel.  Co.,  137  Mass.  463;  s.  c,  24  Am.  L. 
Reg.  328. 


STIPULATIONS    AS    TO    REPEATING.  239  • 

not  ordered  to  be  repeated,  it  was  not  shown  why 
the  message  did  not  reach  its  destination,  nor  was 
it  shown  that  the  failure  to  deliver  was  due  to  the 
willful  misconduct  or  gross  negligence  of  the  defend- 
ant. The  court  held  that  the  case  was  within  the 
letter  and  purpose  of  the  stipulation,  to  which  plaint- 
iff must  be  held  to  have  assented,  and  that  he  was 
only  entitled  to  recover  the  amount  paid  by  him  for 
the  sending  of  the  message.1 

§   227.      This   Rule  as  Understood   in   Kentucky. — 

In  Kentucky,  it  has  been  held  that  a  regulation  of  a 
telegraph  company  that  it  will  not  be  responsible 
for  mistakes  in  transmitting  a  message,  unless  the 
same  is  repeated  and  an  additional  sum  paid  there- 
for, is  just  and  reasonable,  and  that  a  person  who, 
having  notice  of  such  regulation,  sends  a  message 
without  having  it  repeated,  is  to  be  regarded  as  hav- 
ing sent  it  at  his  own  risk.2  It  has  been  said'  of 
such  a  regulation,  by  the  Court  of  Appeals  of  Ken- 
tucky, speaking  through  Simpson,  J.:  "The  public 
are  admonished  by  the  notice  that,  in  order  to  guard 
against  mistakes  in  the  transmission  of  messages, 
every  message  of  importance  ought  to  be  repeated. 
A  person  desiring  to  send  a  message  is  thus  apprised 
that  there  may  be  a  mistake  in  its  transmission,  to 
guard  against  which  it  is  necessary  that  it  should 
be  repeated.  He  is  also  notified  that  if  a  mistake 
occur,  the  company  will  not  be  responsible  for  it 
unless  the  message  be  repeated.  There  is  nothing 
unreasonable  in  this  condition.     It  gives  the  party 

1  Kiley  v.  Western  Union  Tel.  Co.,  109   N.   Y.    231 ;    s.    C,  16  N.   E. 
Rep.  75. 

2  Camp  v.  Western  Union  Tel.  Co.,  1  Mete.  («Ky.)  164;  s.  c,  71  Am. 
Dee.  461. 


2  tO  STIPULATIONS    LIMITING    LIABILITY. 

sending  the  message  the  option  to  send  it  in  such  a 
manner  as  to  hold  the  company  responsible,  or  to 
send  it  for  a  less  price  at  his  own  risk.  If  the  mes- 
sage be  unimportant,  he  may  be  willing  to  risk  it 
without  paying  the  additional  charge.  But  if  it  be 
important,  and  he  wishes  to  have  it  sent  correctly, 
lie  ought  to  be  willing  to  pay  the  cost  of  repeating 
the  message.  This  regulation,  considering  the  acci- 
dents to  which  the  business  is  liable,  is  obviously 
just  and  reasonable.  It  does  not  exempt  the  com- 
pany from  responsibility,  but  only  fixes  the  price  of 
that  responsibility,  and  allows  the  person  who  sends 
the  message  either  to  transmit  it  at  his  own  risk,  at 
the  usual  price,  or  by  paying  in  addition  thereto 
half  the  usual  price,  to  have  it  repeated,  and  thus 
render  the  company  liable  for  any  mistake  that  may 
occur.  The  plaintiff  must,  therefore,  be  regarded 
as  having  sent  the  message  in  this  case  at  his  own 
risk,  inasmuch  as  he  failed  to  have  it  repeated,  and 
consequently  the  company  was  not  liable  for  the 
mistake."2 

§  228.  View  that  Condition  as  to  Repetition  Ex- 
onerates only  from  Liability  for  Errors  Preventible 
by  Repeating-. — There  is,  however,  a  class  of  cases 
which  proceed  on  views  much  more  consonant  with 
common  sense  and  justice,  in  holding  that  where 
the  repetition  of  the  message  would  not  have  pre- 
vented the  damage  complained  of,  the  company  will 
not  be  protected  from  liability  by  reason  of  the  fail- 
ure of  the  sender  to  have  it  repeated.3     Such  a  pro- 

*  Camp  v.  Western  Union  Tel.  Co.,  1  Mete.  (Ky.)  164;  s.  C,  71  Am. 
Dec.  4(31,463. 

8  Western  Union  Tel.  Co.  v.  Graham,  1  Colo.  230;  S.  C,  9  Am.  Rep. 
136;  10  Am.  L.  Reg.  (N.  Y.)  319;  Western  Union  Tel.  Co.  v.Fenton,52 
Ind.  1:    Birney  v.  New  York,  etc.  Tel.  Co.,  IS  Md.  341;  s.  c,  81  Am. 


STIPULATIONS    AS    TO    REPEATING.  241 

ceeding  would  not,  for  instance,  have  any  tendency 
to  prevent  a  negligent  delay  in  delivering  a  message, 
or  a  negligent  failure  to  deliver  it  at  all.  These 
courts,  therefore,  held  that  such  a  stipulation  will 
not  be  allowed  to  operate  so  as  to  excuse  a  negligent 
delay  in  delivering,  or  a  negligent  non-delivery.1 
For  stronger  reasons,  it  would  not  excuse  a  total 
failure  to  deliver  it.2  If  the  message  is  unreasona- 
bly delayed,  or  not  delivered  at  all,  actual  damages 
may  be  recovered,  notwithstanding  a  stipulation  in 
the  telegraph  blank  that  only  the  cost  of  transmis- 
sion is  recoverable.  For  like  reasons,  a  condition 
in  a  telegraph  blank  relieving  the  company  from 
liability  for  mistakes  or  delays  in  the  transmission  of 
unrepeated  messages,  and  exempting  it  from  liability 
for  errors  in  transmitting  cipher  or  obscure  messages, 
does  not  limit  its  liability  for  failure  to  transmit  a 
cipher  message  from  the  receiving  office.3     A  rule 

Dec.  607,  612;  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.),  226,  23S;  s. 
c,  Allen  Tel.  Cas.  306;  Sprague  v.  Western  Union  Tel.  Co.,  6  Daly 
(N.  Y.),  200;  Bell  v.  Dominion  Tel.  Co.,  25  L.  Can.  Jur.  248;  s.  c,  3 
Montr.  Leg.  News,  406. 

!True  v.  International  Tel.  Co.,  60  Me.  9,  18,  per  Kent,  J.; 
Manville  v.  Western  Union  Tel.  Co.,  37  Iowa,  314;  Western 
Union  Tel.  Co.  v.  Fenton,52  Ind.l,  5;  Baldwin  v.  United  States  Tel.  Co., 
54  Barb.  (N.  Y.)  505;  s.  c,  1  Lans.  125;  6  Abb.  Pr.  (N.  S.)  195  (reversed 
on  other  grounds,  45  N.  Y.  744) ;  Sprague  v.  Western  Union  Tel.  Co.,  6 
Daly  (N.  Y.),  200;  New  York,  etc.  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  298; 
Western  Union  Tel.  Co.  v.  Broesche,  72  Tex.  654;  s.  c,  10  S.  W.  Rep. 
734;  Thompson  v.  Western  Union  Tel.  Co.,  64  Wis.  531;  s.  c,  54  Am.  Rep. 
644;  Thompson  v.  Western  Union  Tel.  Co.,  107  N.  C.  449;  s.  c,  12  S. 
E.  Rep.  427.  Compare  :  Thompson  v.  Western  Union  Tel.  Co.,  106  N. 
C.  549;  s.  c,  30  Am.  and  Eng.  Corp.  Cas.  634;  11  S.  E.  Rep.  269. 

2  Gulf,  etc.  R.  Co.  v.  Wilson,  69  Tex.  739;  s.  c,  7  S.  W.  Rep.  653; 
Western  Union  /Tel.  Co.  v.  Graham,  1  Colo.  230;  Western  Union  Tel. 
Co.  v.  Henderson,  89  Ala.  510;  s.  C,  30  Am.  and  Eng.  Corp.  Cas.  615; 
7  South.  Rep.  419;  Western  Union  Tel.  Co.  Broesche,  72  Tex.  604;  s.c, 
10  S.  W.  Rep.  734. 

3  Western  Union  Tel.  Co.  v.  Way,  83  Ala.  542;  s.  c,  4  South.  Rep. 
844. 

(16) 


242  STIPULATIONS    LIMITING    LIABILITY. 

which  stipulates  that  unless  a  message  is  repeated 
a  company  will  not  be  liable  for  failing  to  deliver  it, 
is  therefore  an  unreasonable  rule,  because  it  is  an 
attempt  on  the  part  of  the  company  to  stipulate 
againsl  liability  for  its  own  negligence.1 

§  229.  illustrations  of  this  View. — Thus,  where 
the  exemption  was  contained  in  a  printed  regulation 
posted  in  the  company's  office,  by  which  the  public 
were  informed  that  the  company  would  not  be  liable 
for  any  loss  or  damage  that  might  ensue,  "by  reason 
of  any  delay  or  mistakes  in  the  transmission  or  de- 
liver}7, or  from  non-delivery,  of  any  unrepeated 
messages,"  etc.,  it  was  said:  "It  is  manifest  that 
the  terms  of  the  notice  neither  embrace  nor  declare 
an  exemption  from  liability  in  a  case  where  no 
effort  is  made  by  the  company,  or  its  agents  to  put 
a  message  on  its  transit.  The  exemption  from  lia- 
bility for  the  non-transmission  and  non-delivery  of 
unrepeated  messages,  provided  for  by  the  rules  con- 
tained in  the  notice,  does  not,  in  our  opinion,  in 
any  way  embrace  or  affect  this  case.  The  terms  of 
the  notice  in  which  exemption  from  liability  is  de- 
clared clearly  imply  an  obligation  on  the  part  of  the 
company  to  attempt  the  transmission  and  delivery 
of  a  message  received  by  it  for  that  purpose,  and  it 
would  be  most  unreasonable  to  permit  it  to  have 
the  benefit  of  an  exemption   from  liability  without 

51  bringing  itself  within  the  scope  of  the  exemp- 
tion provided  for,  by  a  full  and  faithful  performance 
of  its  implied  duties.  While  we  give  full  force  and 
effect  to  the  rules  and  regulations  of  the  appellee  in 
a  legal  construction  of  them,  we  deem  it  unjust  to 
the  appellant  to  extend  that  effect  beyond  the  actual 

1  Western  Union  Tel.  Co.  v.  Fenton,  52  Ind.  1,  6. 


STIPULATIONS    AS    TO    REPEATING.  243 

terms  adopted  by  the  appellee  to  secure  its  exemp- 
tion."1 So,  where  the  gist  of  the  action  was  the 
failure  to  deliver  the  message,  it  was  held  that  such  a 
stipulation  could  not  operate  to  exonerate  the  com- 
pany from  liability  for  the  actual  damages,  since  the 
safe  delivery  of  the  message  at  the  other  end  of  the 
line  would  not  be  insured  by  repeating  it.  "The 
gist  of  the  action,"  said  Belford,  J.,  "is  the  failure 
to  deliver  the  message.  The  complaint  is  not  that 
the  message  was  incorrectly  sent,  or  that  it  was  in- 
accurately taken  off  the  wires  at  Nebraska  City.  If 
this  was  the  gravamen  of  the  action,  we  might  hold, 
with  the  Kentucky  and  Massachusetts  courts,  that 
it  was  the  duty  of  the  plaintiff  to  insure  its  accuracy 
by  having  it. repeated.  But  how  could  the  failure 
to  deliver  the  message  be  avoided  by  paying -for 
having  it  repeated?  Can  it  be  said  that  the  operator 
at  the  other  end  of  the  line  could  insure  the  safe 
delivery  of  a  message  by  repeating,  when  the  negli- 
gence which  occasioned  the  failure  occurred  after 
the  receipt  of  the  message?  The  object  of  repeating 
a  message  is  to  correct  errors,  and  not  to  avoid  de- 
lays in  delivering  it.  After  transmission,  an  incor- 
rect message  could  be  sent  out  and  delivered  as 
speedily  as  if  it  had  been  verified  and  proved  to  be 
perfectly  accurate.  Delays  in  the  delivery  of  a 
message  result  from  causes  altogether  different  from 
those  which  produce  mistakes  in  transmission,  and 
it  is  reasonable  that  rules  of  limitation  or  exemption 
should    be    adapted    to   the  nature    of  the  case." 

1  Birney  v.  New  York,  etc.  Tel.  Co.,  18  Md.  341;  s.  c,  SI  Am.  Dec. 
607,  G12. 

2  Western  Union  Tel.  Co.  v.  Graham,  1  Colo.  230;  s.  c,  9  Am.  Rep. 
136, 139.  To  the  same  effect  is  Bryant  v.  American  Tel.  Co.,  1  Daly  (\. 
Y.),  575.     It  is  said  in  a  note  in  9  Am.  Rep.  149,  that  this  last  case  was 


244  STIPULATIONS    LIMITING    LIABILITY. 

Another  court  has  reasoned  that  such  a  stipulation 
as  to  the  repeating  of  the  message  will  not  excuse 
an  entire  failure  to  send  it , — that  not  being  "a  mis- 
take or  delay  in  the  transmission  or  delivery,  or  a 
non-delivery/'  of  the  message,  within  the  meaning 
of  the  language  creating  the  exemption.1 

§  230.  illustrations  Continued. — So,  where  a  mes- 
sage, as  written  and  delivered  to  the  agent  of  the 
company  read,  "Send  *  *  *  two  hand  bouquets," 
and  the  message  as  delivered  read,  "Send  two  hun- 
dred bouquets,"  and  it  appeared  that  the  error  was 
not  due  to  any  imperfect  transmittal  of  the  message 
over  the  wires,  but  to  a  mistake  of  the  clerk  who 
received  it,  who,  supposing  the  word  "hand"  to  be 
hund,  and  to  have  been  intended  as  an  abbrevia- 
tion of  the  word  hundred,  added  to  it  the  three 
letters  r-e-d,  it  was  held  that  the  company  was  lia- 
ble for  the  damages  sustained  by  the  person  to 
whom  the  message  was  sent,  although  there  was  on 
the  blank  on  which  the  sender  had  written  it  the 
following  condition:  "The  company  will  not  be 
liable  for  any  loss  or  damage  that  may  ensue  by 
reason  of  any  delay  or  mistake  in  the  transmission 
or  delivery,  or  from  non-delivery,  of  unrepeated 
messages,  but  only  engages  to  use  reasonable  efforts 
to  secure  the  services  of  competent  and  reliable  em- 
ployees, so  as  to  have  their  business  transacted  in 
good  faith."  Again,  where  a  message,  written  on 
a  blank  containing  such  a  stipulation,  was  addressed 
to  E.  W.  Manville,  but  was  translated  by  the  oper- 
ator S.  Manville,  and,  after  having  been  received  at 

reversed  in  the  New  York  Court  of  Appeals,  but  only  by  reason  of  de- 
fault. 

1  Sprague  Western  Union  Tel.  Co.,  G  Daly  (N.  Y.),  200. 

2  New  Y'ork,  etc.  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  299. 


STIPULATIONS    AS    TO    REPEATING.  245 

the  terminal  office,  was  not  placed  in  the  hands  of 
the  company's  messenger  for  delivery  for  three 
days,  but  was  when  placed  in  the  hands  of  the  mes- 
senger, delivered  to  the  right  person,  it  was  held 
that  the  company  was  responsible  for  the  resulting 
damages,  although  the  person  for  whom  it  was  in- 
tended had  called  for  it  on  the  day  it  was  received, 
and  would  have  received  it  if  it  had  been  repeated 
according  to  the  terms  of  the  printed  conditions  of 
the  blank  on  which  it  was  sent;  since,  if  the  oper- 
ator had  not  been  negligent  in  not  delivering  the 
message  to  the  company's  messenger  when  it  was 
received,  the  delay  would  not  have  occurred,  not- 
withstanding it  was  wrongly  addressed.1  In  another 
case  the  plaintiff  sent  a  message  by  the  defendant's 
telegraph  line,  written  upon  a  blank  furnished  by 
the  defendant  company  containing  a  printed  condi- 
tion that  the  defendant  would  not  be  "responsible 
for  any  error  or  delay  in  the  transmission  of  any 
unrepeated  message,"  without  the  payment  of  ad- 
ditional'charges.  The  message  directed  the  sale  of 
100  shares  of  stock.  It  was  transmitted  so  as  to  di- 
rect the  sale  of  1,000  shares,  and  was  not  repeated. 
In  an  action  against  the  telegraph  company  for 
damages,  it  was  held  that  the  condition  of  the  mes- 
sage did  not  relieve  the  company  from  liability  for 
errors  arising  from  its  own  negligence  ;  that  the  error 
was  prima  facie  evidence  of  the  defendant's  negli- 
gence, and  that  the  measure  of  damages  was  the 
amount  paid  b}r  the  plaintiff  by  reason  of  an  ad- 
vance in  the  price  of  stock  to  replace  the  excess  of 
nine  hundred  shares  sold  in   obedience  to  the  erro- 

1  Manville  v.  Western  Union  Tel.  Co.,  37  Iowa,  214. 


246  STIPULATIONS    LIMITING    LIABILITY. 

neons  in. --nut'.1  In  another  case  the  message  blank 
contained  a  similar  stipulation,  and  the  message, 
when  delivered  to  the  company,  was  placed  among 
the  messages  to  be  sent,  and  when  it  was  reached  it 
was  taken  by  the  defendant's  operator,  who  called  the 
i  iflBce  to  which  it  was  to  be  transmitted,  and  found  the 
wire  in  use.  While  waiting,  his  attention  was  en- 
gaged elsewhere,  and  he  placed  the  message  among 
the  messages  that  had  been  sent,  and  it  was  not  sent 
until  a  week  later.  It  was  held  that  this  was  gross 
negligence,  and  therefore  the  contract  did  not  limit 
plaintiff's  recovery  to  the  amount  paid  for  trans- 
mission." 

§  231.  Cases  of  Exoneration  Under  this  Rule. — 
Under  the  operation  of  this  rule,  where  there  is  a 
stipulation  on  the  blank  on  which  the  message  is 
sent,  to  the  effect  that  the  company  shall  not  be 
liable  beyond  a  stated  amount  unless  the  dispatch 
is  repeated  at  the  cost  of  the  sender,  the  company 
will  not  be  responsible  for  an  error  in  taking  down 
and  transmitting  the  dispatch  at  the  other  end  of 
the  line;3  as,  where  a  dispatch  ordering  the  pur- 
chase of  $700  in  gold,  was  taken  down  and  de- 
livered "$7,000  in  gold;"4  or  wThere  it  ordered 
whisky  at  sixteen  cents  per  gallon,  instead  of  fifteen 
cents;5  or  where  it  ordered  the  person  to  whom  it 
was  sent  to  ship  by  rail  instead  of  by  sail;6  or  where 

1  Tyler  v.  Western  Union  Tel.  Co..  60  111.  421 ;    s.  C,  14  Am.  Kep.  38. 

2  Mowry  v.  Western  Union  Tel.  Co.,  51  Hun  (X.  Y.),  126;  s.  c, 
1  N.  Y.  Supp.  666. 

3  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mass.),  226;  Camp  v.  Western 
Union  Tel.  Co.,  1  Mete.  (Ky.)  164;  s.  c,  6  Am.  L.  Keg.  443;  Wann  v. 
Western  Union  Tel.  Co.,  37  Mo.  472. 

4  Breese  v.  United  States  Tel.  Co.,  45  Barb.  (X.  Y.)  274. 
<  amp  v.  Western  Union  Tel.  Co.,  supra. 

■'  Wann  v.  Western  Union  Tel.  Co.,  supra. 


STIPULATIONS    AS    TO    KEPEATING.  247 

it  was  delivered  so  as  to  read,  "I  sold  the  Tibbs 
contract,"  instead  of  "I  hold  the  Tibbs  contract."1 
A  message  was  subject  to  a  condition  similar  to  that 
alreacW  quoted,  and  no  extra  fees  were  paid  for  re- 
peating it.  It  was  a  direction  to  send  "ten  men 
$125."  As  delivered  it  read  "ten  men  $175." 
The  court  instructed  the  jury  that,  notwithstanding 
the  terms  and  conditions  set  forth,  the  defendants 
were  bound  to  make  use  of  ordinary  care,  attention 
and  skill,  and  were  liable  to  damages  arising  from 
inattention  or  carelessness  in  the  transmission  of 
the  message,  either  to  the  sender  or  to  the  receiver, 
according  to  their  respective  interests  in  the  mes- 
sage; and  that  the  error  in  the  message  was  prima 
facie  evidence  of  want  of  ordinary  care,  attention 
and  skill  on  the  part  of  the  defendants.  A  verdict 
was  returned  for  the  plaintiff,  which  was  set  aside 
by  the  supreme  judicial  court  as  erroneous,  the 
court  holding  that  the  liability  of  the  telegraph 
company  was  not  like  that  of  a  common  carrier,  and 
that  the  printed  conditions  limiting  this  liability 
were  reasonable  and  valid.2  In  an  English  case,  the 
message  was  sent  subject  to  the  condition  that  "this 
company  will  not  be  responsible  for  mistakes  in  the 
transmission  of  unrepealed  messages,  from  whatever 
cause  they  may  arise."  In  the  transmission  of  a 
message,  which  was  unrepeated,  the  word  "South- 
ampton" was  substituted  for  the  word  "Hull."  The 
message  was  accordingly  sent  to  the  wrong  town. 
In  an  action  against  the  company  for  damages,  the 


1  Passmore  v.  Western  Union  Tel.  Co.,  78  Pa.  St.  238  (affirming  s.  C. 
9Phila.  (Pa.)  90). 

2  Ellis  v.  American  Tel.  Co.,  13  Allen  (Mas?.),  226. 


248  STIPULATIONS    LIMITING    LIABILITY. 

court  held  that  the  condition  was  a  reasonable  one, 
and  that  the  plaintiff  could  not  recover.1 

§  232.  Continued. — A  message  directed  to  "Owego, 
X.  Y.,"  was  erroneously  sent  to  "Oswego,  N.  Y." 
It  contained  the  stipulation  quoted  in  the  preceding 
section.  As  there  was  nothing  in  the  facts  of  the 
case  from  which  it  could  be  inferred  that  the  tele- 
graph company  had  been  guilty  of  fraud  or  gross 
negligence,  or  that  the  error  was  of  such  a  character 
that  the  company  could  not  legally  contract  for  its 
own  protection  against  liability  for  it,  on  such  terms 
as  the  printed  conditions  contained,  it  was  held 
that  the  sender  could  not  recover  damages.2  So, 
where  the  stipulation  on  the  message  blank  was, 
''To  guard  against  mistakes  or  delays,  the  sender  of 
the  message  should  order  it  repeated,"  etc.;  and 
the  message  read  :  "If  not  already,  close  out  my 
Decembers,"  and  was  correctly  transmitted  to  the 
first  repeating  office,  but  was  from  some  cause  un- 
known delivered  to  the  person  addressed,  reading  as 
follows:  "If  not  already,  closed  out  my  Decembers," 
there  being  no  other  evidence  of  negligence  than 
arose  from  the  fact  of  this  error  in  transmission,  it 
was  held,  confirming  the  trial  court,  that  the  com- 
pany was  liable  only  for  the  sum  paid  for  sending 
the  message,  with  interest.3  Where  the  contract 
printed  at  the  top  of  atelegraph  blanklimited  liability 
.for  negligence  or  delay  in  transmitting  an  unrepealed 
message  to  the  amount  paid  for  its  transmission,  and 
a  repeated  message  to  fifty  times  the  amount  paid, 

1  MacAndrew  v.  Electric  Tel.  Co.,  17  C.  B.  3. 

2  Redpath  v.  Western  Union  Tel.  Co.,  112  Mass.  71;  s.  c,  17  Am. 
Rep.  69. 

8  Womack  v.  Western  Union  Tel.  Co.,  58  Tex.  176;  s.  c,  44  Am.  Rep. 
G14. 


STIPULATIONS    AS    TO    REPEATING.  249 

the  limitation  was  held  reasonable  and  binding  on 
one  accustomed  to  read  such  blanks,  and  it  was  held 
error  to  refuse  to  limit  recovery  to  $12.50  for  error 
in  a  twenty-five  cent  message  requesting  a  certain 
horse  to  be  shipped,  which,  on  receipt,  read  horses, 
and  which  the  receiver  made  some  attempt  to  have 
repeated.1 

§  233.  Releases  Liability  for  Mistakes  of  Connect- 
ing- Line. — It  is  clear  that,  under  the  operation  of 
this  rule,  a  company  receiving  a  message  which  it  is 
to  transmit  without  repeating,  where  its  regulations 
stipulate  against  liability  in  case  messages  are  not 
repeated,  will  not  be  liable  to  the  sender  if  themes- 
sage  is  lost,  or  transmitted  incorrectly,  through  the 
negligence  of  the  agents  of  a  connecting  line  over 
which  it  is  obliged  to  send  it.2 

§  234.  But  does  not  Exonerate  Connecting-  Line. 
— On  the  other  hand,  it  has  been  held  that  a  stipu- 
lation on  the  blank  on  which  a  telegraphic  message  is 
sent,  that  the  company  will  not  be  liable  beyond  a 
given  amount  unless  the  message  is  repeated,  can 
be  invoked  only  by  the  company  which  receives  the 
message  for  transmittal;  that  a  connecting  line  to 
which  the  message  is  delivered  cannot  avail  itself  of 
it  as  a  defense  against  the  consequences  of  errors 
that  would  not  have  happened  if  the  message  had 
been  repeated;  and  that  such  a  stipulation  can  be 
invoked  only  against  the  sender  of  the  message,  not 
against  any  other  person;  "for  it  is  his  message,  his 
language  that  is  to  be  transmitted,  and  it  is  only 
known  to  the  receiver  when  delivered  and  as  deliv- 

1  Bennett  v.  Western  Union  Tel.  Co.,  IS  N.  Y.  State  Rep.  777 ;  2  X.  Y. 
Supp.  365. 

2  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525;  2  Thoinp.  Neg.  S28; 
De  La  Grange  v.  Southwestern  Tel.  Co.,  25  La.  An.  383;  Post.  §  262. 


250  STIPULATIONS    LIMITING    LIABILITY. 

ered.  He  is  to  be  guided  and  informed  by  what  is 
delivered  to  him,  and  has  no  opportunity  to  agree 
upon  any  such  condition  before  delivery."  l 

S  '235.  Simpler  View  that  Such  Stipulations  are 
Void. — .V  simpler  and  sounder  view  is  that  a  stipu- 
lation in  the  message  blank  of  a  telegraphic  com- 
pany that  it  will  not  be  liable  for  mistakes  or  delays  in 
transmission,  delivery,  or  non-delivery  of  unrepeated 
messages,  whether  happening  by  the  negligence  of 
its  servants  or  otherwise,  beyond  the  amount  re- 
ceived for  sending  the  message,2  is  void,  as  against 
public  policy.3  These  cases  take  the  simpler  and 
sounder  view  that  such  a  stipulation  cannot,  on 
grounds  of  public  policy  and  justice,  be  allowed  to 
operate  so  as  to  relieve  the  telegraph  company  from 
a  responsibility  for  the  negligence  of  its  agents  and 
servants.  The  simpler  and  more  direct  expression 
of  this  rule  is  void;  since,  as  already  suggested,  in  so 
far  as  it  operates  to  relieve  the  company  from  the 
consequences  of  atmospheric  disturbances  and  other 
unavoidable  circumstances,  it  does  no  more  than  the 
law  does  without  it;  so  that,  in  so  far  as  it  has  any 
operation  at  all,  it  operates  only  to  relieve  the  com- 
pany from  the  consequences  of  its  own  negligence. 
The  analogous  rule  touching  the  liabilities  of  com- 
mon curriers,  as  agreed  upon  in  most,  if  not  all  of 
the  American  courts,  is,  that  a  common  carrier  can- 

1  De  La  Grange  v.  Southwestern  Tel.  Co.,  25  La  An.  383. 

2  The  present  stipulation  in  the  message  blanks  of  the  Western  Union 
Telegraph  Company. 

3  Aver  v.  Western  Union  Tel.  Co.,  79  Me.  493;  S.  C,  1  Am.  St.  Rep. 
353;  Tyler  v.  Western  Union  Tel.  Co.,  60111.  421 ;  s.  C,  14  Am.  Rep.  38; 
Western  Union  Tel.  Co.  v.  Tyler.  74  111.  168;  S.  C,  24  Am.  Rep.  279; 
Western  Union  Tel.  Co.  v.  Blanebard,  6S  Ga.  299;  s.  C,  45  Am.  Rep. 
4S0;  Western  Union  Tel.  Co.  v.  Short,  53  Ark.  434;  s.  c,  9  L.  R.  A. 
71  -I  ;  9  Rail,  and  Corp.  L.  J.  11 ;  IIS.  W.  Rep.  649. 


STIPULATIONS    AS    TO    REPEATING.  251 

not,  by  a  special  contract  with  the  shipper,  exoner- 
ate himself  from  liability  for  loss  or  damage  caused 
by  the  negligence  of  himself  or  his  servants.1  The 
writer  is  not  aware  of  any  decisions  which  employ, 
in  connection  with  this  rule  in  respect  of  common 
carriers,  the  expression  "gross  negligence,"  though 
possibly  such  may  be  found.  Why  a  telegraph 
company  should  enjoy  the  benefit  of  a  more  favora- 
ble rule  of  law  than  that  which  is  accorded  to  a  rail- 
way company,  or  other  common  carrier  exercising 
an  analogous  employment,  has  not  been  and  cannot 
be  judicially  explained. 

§  236.  Reasons  given  for  this  View. — The  follow- 
ing cogent  reasons  were  given  for  this  view  by  the 
Supreme  Court  of  Illinois,  in  an  opinion  delivered 
by  Mr:  Justice  Breese:  "If  it  be  a  contract,  the 
sender  entering  into  it  was  under  a  species  of  moral 
duress.  His  necessities  compelled  him  to  resort  to 
the  telegraph  as  the  only  means  through  which  he 
could  speedily  transact  the  business  in  hand,  and 
was  compelled  to  submit  to  such  conditions  as  the 
company,  in  their  corporate  greed,  might  impose, 
and  sign  such  a  paper  as  the  company  might  pre- 
sent. 'Prudential  rules  and  regulations,'  such  as 
the  company  is  authorized  by  statute  to  establish, 
cannot  be    understood  to  embrace  such   regulations 

1  Swindler  v.  Hilliard,  2  Rich.  L.  (S.  C.)  2SG;  United  States  Exp.  Co. 
v.  Backtnan,  28  Ohio  St.  144,  155;  Union  Exp.  Co.  v.  Graham,  26  Ohio 
St.  595;  Graham  v.  Davis,  4  Ohio  St.  362;  Welsh  v.  Railroad  Co.,  10 
Ohio  St.  65 ;  Railroad  Co.  v.  Cut-ran,  19  Ohio  St.  1 ;  Berry  v.  Cooper,  2S  Ga. 
543;  Farnham  v.  Camden,  etc.  R.  Co.,  55  Pa.  St.  53;  Grogan  v.  Adams 
Exp.  Co.  (Pa.),  5  Cent.  Rep.  298;  Lamb.  v.  Camden,  etc.  R.  Co.,  46  N. 
Y.  271 ;  American  Exp.  Co.  v.  Sands,  55  Pa.  St.  140;  Southern  Exp.  Co. 
v.  Moon,  39  Miss.  S22;  The  City  of  Norwich,  4  Ben.  (U.  S.)  271 ;  Black 
v.  Goodrich  Transp.  Co.,  55  Wis.  319;  Chicago,  etc.  R.  Co.  v.  Abels,  tiO 
Miss.  1017;  Kansas  City,  etc.  R.  Co.  v.  Simpson,  30  Kan.  (J  15;  Moulton 
v.  St.  Paul,  etc.  R.  Co.,  31  Minn.  85. 


252  STIPULATIONS    LIMITING    LIABILITY. 

as  shall  deprive  a  party  of  the  use  of  their  instru- 
mentality, save  by  coming  under  most  onerous  and 
unjust  conditions.  But  it  is  said,  a  special  agree- 
ment might  have  been  made  for  insurance,  in  writ- 
ing. To  do  this,  the  amount  of  risk  must  be  speci- 
fied on  the  contract,  and  paid  at  the  time  of  sending 
the  message;  and  as  there  is  but  one  person  in  the 
world,  a  superintendent,  authorized  to  make  a  con- 
tract of  insurance,  he  must  be  hunted  up  and  the 
terms  negotiated — all  which  requires  time — and  a 
favorable  opportunity  to  the  sender  be  irretrievably 
lost.  At  Chicago,  or  other  large  cities,  where  a 
superintendent  is  supposed  to  be,  there  might  not 
be  much  loss,  but  we  are  declaring  the  law  for  the 
whole  State,  and  it  is  well  known  that  at  subordi- 
nate, though  important  stations,  on  telegraph  lines, 
superintendents  are  not  to  be  found;  this  provision 
is  to  such  perfectly  valueless.  As  a  party,  repeat- 
ing a  message,  and  paying  fifty  per  cent,  additional 
therefor,  cannot  recover  of  the  company  to  the  ex- 
tent of  his  loss,  we  are  free  to  say  such  a  contract, 
forced,  as  we  have  shown  it  is,  upon  the  sender,  is, 
in  our  opinion,  unjust,  unconscionable,  without  con- 
sideration and  utterly  void."  1  In  enforcing  the 
same  view,  the  Supreme  Court  of  Georgia  has  said: 
"Any  rule  or  regulation  of  the  company  which  seeks 
to  relieve  it  from  performing  its  duty  belonging  to  the 
employment  with  integrity,  skill  and  diligence,  con- 
travenes public  policy  as  well  as  the  law,  and  under 
it  the  party  at  fault  cannot  seek  refuge.  If  it  be- 
come necessary  for  the  company,  in   transmitting 


1  Tyler  v.  Western  Union  Tel.  Co.,  60  111.  421 ;  s.  c,  14  Am.  Rep.  38, 
51.  The  doctrine  of  this  case  was  reaffirmed  in  Western  Union  Tel.  Co. 
v.  Tyler,  74  111.  168;  S.  C,  24  Am.  Rep.  279. 


STIPULATIONS    AS    TO    KEPEATING.  253 

messages  with  integrity,  skill  and  diligence,  to 
secure  accuracy,  to  have  said  messages  repeated, 
then  the  law  devolves  upon  them  that  duty,  to  meet 
its  requirements.  We  know  of  no  law  in  this  State 
that  limits  their  tolls  on  messages;  this  is  under 
their  own  control.  A  message  must  be  transmitted 
with  integrity,  skill  and  diligence,  and  the  mode  of 
attaining  accuracy  in  such  work  they  have  at  their 
command;  the  compensation  paid  therefor  the  law 
does  not  seek  to  limit  or  restrict."  1 

§  237.  Receiver  of  Message  under  no  Obligation 
to  have  it  Repeated. — The  right  of  action  established 
in  xhe  receiver  of  the  message,  or,  where  it  is  never 
delivered,  in  the  person  to  whom  it  is  addressed,2 
has  given  rise  to  another  question,  where  the  action 
is  brought  by  such  person  and  where  the  message 
which  was  sent  contained  the  stipulation  already 
referred  to,3  in  respect  of  having  the  message  re- 
peated back.  In  such  a  case,  is  the  receiver  of  the 
message  bound  by  the  stipulation,  assuming  that 
the  sender  was  bound  by  it?  If  the  right  of  action 
which  the  receiver  has  against  the  company  rests 
upon  privity  of  contract  and  depends  upon  the  cir- 
cumstance that  the  sender  was  his  agent, — in  other 
words,  if  the  contract  with  the  telegraph  company 
was  the  contract  of  the  receiver,  through  his  agent 
the  sender,  then,  on  the  most  unshaken  grounds, 
the  receiver  would  be  bound  by  this  condition,  if 
the  circumstances  were  such  that  it  would  bind  the 
sender.  Moreover,  if  the  receiver's  right  of  action 
rests  upon  the  doctrine   which  exists  in  America, 

1  Western  Union  Tel.  Co.  v.  Blanchard,  GS  Ga.  299;  s.  c.,45  Am.  Rep. 
480,  484,  opinion  by  Speer,  .). 
*  Post,  §  426. 
8  Ante,  §  224. 


254  STIPULATIONS    LIMITING    LIABILITY. 

especially   in   those   States  where  modern  codes  of 
procedure  have  come  into  vogue,  that  a  third  party 
for  whose  benefit  a  contract  has  been  made  may 
maintain  an  action  thereon  to  enforce  its  covenants, 
then    he    would  be   equally    bound    by    the    stipu- 
lations, unless  known   to  or   assented   to  by    him. 
But  several  cases  are  found  where  the  courts,  with- 
out   proceeding    upon    any    definite    or    consistent 
mound,  have  held  that  the  stipulation  in  regard  to 
repeating  is  not  binding  upon  the  person   to   whom 
the  message  is  sent.  The  Supreme  Court  of  Louisiana 
say:     "The  proposition   that   the   defendants  are 
liable,  if  at  all,  only  in  case  the  message  is  repeated, 
as  contained  in  the  printed  conditions,  can  be  in- 
voked only    against  the  sender  of  the   message,  if 
against   any.     The   receiver  can   be  guided  or  in- 
formed solely  by  what  is  delivered  to  him,  and   has 
no  opportunity  to   agree  upon  any  such  condition 
before  delivery."1    If  the  telegraph  company,  when 
it  delivers  an  erroneous  message  to  the  person  to 
whom  it  has  been  addressed  by  the   sender,  puts 
itself  in   the   condition  of  a   mere   tort-feasor,   one 
guilty  of  a  mere   misfeasance  toward  a  stranger,  by 
which  that  stranger  has  incurred  a  loss,  then  this 
conclusion   is   supportable.      This   seems   to    have 
been  the   view   of  a  court  in  Pennsylvania,  where 
there  was  on  the  message  blank  the  usual  condition 
in  regard  to  repeating,  and  where  the  message  was 
wrongly    transmitted,   and   the    receiver    sued    for 
damages.     The  court  say:     "Two  questions  arise 
in    this    case :     First,   was    there    sufficient    notice 
brought  home  to  the  plaintiff  as  to  the  regulations 

1  Lagrange  v.   Southwestern  Tel.    Co.,   25  La.   An.   3S3.    Compare 
A;ken  v.  Telegraph  Co.,  5  S.  C.  358. 


STIPULATIONS    AS    TO    REPEATING.  255 

as  to  repetition  of  messages?  Secondly,  if  so,  was 
the  plaintiff  in  this  action  bound  by  such  notice? 
As  to  the  first  point,  we  are  of  opinion  that  the 
notice  was  not  sufficient.  The  defendant  delivered 
to  plaintiff  a  wrong  message,  and  the  jury  have 
found  that  the  error  was  caused  by  the  defendant's 
negligence.  The  defendant,  therefore,  is  in  the 
position  of  a  wrong-doer,  and  a  notice,  to  excuse 
him,  must  be  so  full,  clear  and  explicit  that  it 
would  be  negligence  in  the  plaintiff  to  disregard  it. 
The  notice  proved  was  only  a  notice  that  there  were 
regulations  of  the  company,  and  that  they  had  been 
agreed  to  b}r  the  sender  of  the  message.  Not  the 
slightest  specification  is  given  of  the  nature  of  the 
regulations,  nor  any  caution  to  the  receiver  of  the 
message  that  they  might  be  important  for  him  to 
examine.  We  cannot  say  that  there  was  anything 
in  such  a  notice  that  put  the  plaintiff  upon  inquiry 
or  caution  at  his  peril.  As  the  first  point  is  de- 
cisive in  the  plaintiff's  favor,  we  are  not  called  upon 
to  decide  the  second.  But  we  may  say  that,  treat- 
ing this  action  as  purely  in  tort  for  misfeasance,  it 
would  seem  upon  principle  that  the  plaintiff  could 
not  be  bound  by  such  notice."1  The  Supreme 
Court  of  the  same  State  seems  to  have  proceeded 
upon  this  view  in- an  earlier  case,2  where,  in  giving 
the  opinion  of  the  court,  it  is  said  by  Woodward, 
J.:  "This  company  charge  fifty  per  cent,  ad- 
vance upon  the  usual  price  of  transmission,  where 
the  sender  demands  that  the  message  be  repeated 
back  to  the  first  operator,  and  Leroy  [the  sender] 

1  Harris  v.  Western  Uuiou  Tel.  Co.,  0  Phila.  (Pa.)  S8. 

2  New  York,  etc.  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  298,  303;  s.  c,  Allen 
Tel.  Cas.  157;  78  Am.  Dec.  338. 


256  STIPULATIONS    LIMITING    LIABILITY. 

did  not  pay  it.  If  it  be  granted  that,  in  conse- 
quence of  his  not  purchasing  this  security  against 
mistakes,  he  could  not  hold  the  company  liable,  it 
does  not  follow  that  Dryburg  [the  person  addressed] 
cannot.  He  did  not  know  whether  the  message 
had  been  repeated  back  to  Leroy  or  not."  Another 
court  has  distinctly  ruled  that  it  is  not  contributory 
negligence  in  the  receiver  of  the  message  not  to  tel- 
egraph back  to  ascertain  whether  it  has  been  cor- 
rectly transmitted,  for  the  reason  that  "the  company 
was  bound  to  send  the  message  correct^  in  the  first 
instance."  1 

§  238.  What  Amounts  to  a  Request  to  have  the 
Message  Repeated. — The  disposition  of  the  courts  to 
relieve  the  public  from  the  consequences  of  these 
unconscionable  engagements  of  telegraph  compa- 
nies is  shown  in  an  action  for  the  negligent  trans- 
mission of  a  message,  where  it  appeared  that  plaintiff 
went  at  once  to.  the  operator,  and  requested  him  to 
ask  the  sender  whether  it  was  "five  six"  or  "five 
sixty;"  and  the  court  held  that  this  amounted  to  a 
request  by  plaintiff  to  have  the  message  repeated, 
and  that  it  was  immaterial  that  the  forms  estab- 
lished by  defendant  for  the  repetition  of  messages 
were  not  complied  with.2 

§  239.  Waiver  of  Such  Stipulation  a  Question 
for  Jury. — Whether  a  telegraph  company,  by  orally 
receiving  and  delivering  messages  relating  to  oil- 
market  quotations,  where  the  exigencies  do  not  give 
time  to  write  the  messages,  intends  to  relieve  its 

1  Tyler  v.  Western  Union  Tel.  Co.,  60  111.  421;  s.  c,  14  Am.  Rep.  38, 
47.  See  also  De  Rutte  v.  Xew  York  Tel.  Co.,  30  How.  Pr.  (X.  Y.)  403, 
416. 

2  Western  Union  Tel.  Co.  v.  Landis  (Pa.),  12  Atl.  Rep.  467,  s.  c,  21 
W.  X.  C.  38. 


STIPULATIONS    AS    TO    REPEATING.  257 

patrons  from  the  stipulation  contained  in  its  printed 
blanks,  is  a  question  for  the  jury.1 

§  240.  Such  Stipulations  Apply  only  to  the  Mes- 
sage— not  to  the  Date. — Stipulations  requiring  a  tele- 
gram to  be  repeated  in  order  to  make  the  company 
liable  for  errors,  have  been  held  not  to  apply  to  the 
name  of  the  place  from  which  the  telegram  was  sent, 
that  not  being  properly  a  part  of  the  message,  but 
rather  a  statement  of  fact  peculiarly  within  the 
knowledge  of  the  company.2 

§  241.  Considerations  Showing  that  the  Condition 
as  to  Repeating-  is  a  Mere  Sham. — No  great  mental 
exertion  will  be  expended  on  this  subject  by  any 
one  who  has  had  much  practical  acquaintance  with 
the  business  of  telegraphing,  to  convince  him  that 
the  conditions  as  to  repeating  in  the  message  blanks 
of  the  Western  Union  Telegraph  Company  (the 
company  which  does  nearly  all  the  telegraph  busi- 
ness within  the  United  States),  was  never  intended 
to  enable  the  senders  of  messages  to  guard  against 
errors  and  imperfections  incident  to  the  nature  of 
the  service,  but  was  a  mere  sham,  designed  to  en- 
able the  telegraph  company  to  take  the  money  of  its 
customers  on.  consideration  of  its  agreement  to  per- 
form for  them  a  certain  service,  and  then  escape  all 
liability  for  failing  to  perform  it,  or  for  performing- 
it  negligently  or  imperfectly.  This  conclusion  is  at 
once  suggested  by  that  part  of  the  condition  which 
exonerates  the  company  from  the  consequences  of 
non-delivery  or  delay  in  delivering,  neither  of  which 

1  Western  Union  Tel.  Co.  v.  Stevenson,  128  Pa.  St.  442;  s.  c,  5  L.  R. 
A.  515;  24  W.  N.  C.  497;  IS  Atl.  Rep.  441. 

2  Western  Union  Tel.  Co.  v.  Simpson,  7.".  Tex.  422;  s.  c,  11  S.  W. 
Rep.  385. 

(17) 


258  STIPULATIONS    LIMITING    LIABILITY. 

happenings  the  repeating  of  the  message  would 
have  any  tendency  to  prevent.  This  part  of  the 
stipulation  is,  on  its  face,  dishonest,  corrupt  and 
oppressive.  But  another  consideration  will  show 
that  it  was  never  intended,  by  the  astute  lawyer  who 
no  doubt  framed  this  stipulation  and  the  company 
which  adopted  it,  that  the  customer  should,  in  fact, 
cause  the  message  to  be  repeated.  The  object  of  re- 
sorting to  the  telegraph  instead  of  to  the  mail,  is  to 
secure  expedition  in  making  communications.  Com- 
mon experience  shows  that  such  is  the  shameful  man- 
ner in  which  this  service  is  done  by  the  one  company 
which  practically  has  a  monopoly  of  the  business, 
that  a  message  sent  by  mail  will  often  be  delivered 
sooner  than  one  sent  by  telegraph.  If  a  message 
were  repeated  for  the  sake  of  greater  accuracy,  the 
time  required  for  its  delivery  at  the  end  of  its  tran- 
sit (already  shamefully  long  under  the  best  con- 
ditions), would  be  greatly  increased.  This  fact 
would  defeat  the  very  object  of  resorting  to  the 
telegraph,  and  will  operate  in  most  cases  to  deter 
a  man  in  haste  to  have  a  message  delivered, 
from  ordering  it  to  be  repeated,  especially  in 
view  of  the  further  fact  that  the  repeating  of  it 
incurs  an  additional  expense.  The  condition  was, 
therefore,  never  imposed  upon  the  public  from 
honest  or  sincere  motives,  but  is  a  mere  sham — 
a  cunningly  devised  trap,  and  it  is  speaking  within 
carefully  chosen  bounds  to  say  that  most  of  the 
judicial  courts,  in  upholding  the  stipulation  as 
reasonable,  fell  into  the  trap  with  shameful  alac- 
rity.1 

1  Point  is  given  to  this  statement  by  a  case  where  a  dispatch  directed 
a  sale  at  the  board  of  brokers,  and  by  reason  of  an  error  in  transmitting 


STIPULATIONS    AS    TO    REPEATING.  259 

it,  it  had  to  be  repeated,  in  consequence  of  which  it  was  received  too 
late  to  be  fulfilled  at  the  board,  and  the  stock  was  purchased  on  the 
street  at  a  loss.  Here  it  was  held,  that  the  defendants,  having  placed  it 
beyond  the  power  of  the  plaintiff's  brokers  to  make  the  purchase  in  the 
particular  Manner  indicated,  they  could  not  avail  themselves  of  the  fact 
that  the  purchase  was  made  in  that  mode.  Rittenhouse  v.  Independent 
Line  of  Telegraph,  1  Daly  (N.  Y.).  474. 


260  STIPULATIONS    LIMITING    LIABILITY 


Article  IV.— STIPULATIONS  AND  LIMITATIONS  AS  TO 

TIME  AND  MANNER  OF  PRESENTING  CLAIMS 

FOR  DAMAGES. 

Section. 

245.  Such  Stipulations,  when  Deemed  Reasonable. 

246.  Reason  of  the  Kule. 

247.  Limitation  of  Sixty  Days  not  Unreasonable. 

248.  Validity  of  Limitation  of  Less  than  Sixty  Days. 

249.  Circumstances  under  which  Such  Limitation  too  Short. 

250.  Thirty  Days'  Limitation  with  Knowledge  of  Loss  Sufficient. 

251.  Whether  Applicable  to  Actions  for  Statutory  Penalties. 

252.  Applies  only  in  Cases  where  Message  is  Sent. 

253.  What  not  a  Waiver  of  Written  Notice. 

254.  Notice  must  be  Delivered  to  an  Authorized  Agent. 

255.  When  Such  a  Limitation  Begins  to  Run. 

25G.    Commencement  of  Suit  Equivalent  to  Notice  in  Writing. 

§  245.  Such  Stipulations,  when  Deemed  Reason- 
able.— It  may  be  stated,  as  a  general  principle,  that 
a  stipulation  in  a  telegraph  message  blank  that  the 
company  will  not  be  liable  for  damages  unless  the 
claim  therefor  is  presented  within  a  certain  time 
after  the  delivery  of  the  message  to  the  company 
for  transmission,  is  reasonable,  provided  the  time 
limited  is  not  too  short  to  enable  the  sender,  in  the 
exercise  of  ordinary  diligence,  to  ascertain  the  fact 
of  the  mistake,  delay,  non-delivery  or  other  default, 
and  the  amount  of  damages  thereby  occasioned, 
and  to  present  his  claim  therefor.1 

1  See  cases  cited  in  the  following  sections. 


MANNER    OF    PRESENTING    CLAIMS.  261 

§  246.  Reason  of  the  Rule. — The  reason  of  this 
rule  will  suggest  itself  to  the  ordinary  mind,  but  it 
was  thus  forcibly  stated  in  a  Pennsylvania  case  by 
Mr.  Justice  Agnew  :  "But,  clearly,  it  is  not  un- 
reasonable that  a  telegraph  company  should  require 
notice  of  claims  for  its  defaults  within  a  reasonable 
time,  before  being  held  to  answer  for  the  alleged 
default.  From  the  very  nature  of  its  business,  this 
may  be  essential  to  its  protection  against  unfounded 
claims.  These  companies  have  often  to  wrestle  with 
the  elements  themselves,  in  the  storms  which  pros- 
trate their  lines  or  prevent  their  working,  and  are 
not  to  be  held  to  a  harsher  rule  than  common  car- 
riers, who  are  excused  by  the  act  of  God.  Within 
sixty  days  the  cause  preventing  the  transmission  of 
a  message  on  a  particular  day  might  be  easily  as- 
certained and  shown,  which,  after  the  lapse  of 
several  years,  could  not  be  discovered  or  proved. 
It  is  urged  that  the  employer  might  not  discover 
the  failure  to  send  his  message  forward  within  this 
time.  How  far  this  fact  would  displace  the  condi- 
tion it  is  not  proper  now  to  say ;  but  the  reason  is 
inapplicable  to  this  case,  where,  from  the  nature  of 
the  message,  its  failure  to  reach  its  destination  must 
be  known,  and  was  known,  immediately  by  the 
employer.  Another  reason  justifying  the  reason- 
ableness of  the  provision  for  notice  of  the  claim  is 
found  in  the  multitude  of  messages  transmitted  re- 
quiring a  speedy  knowledge  of  claims  to  enable  the 
company  to  keep  an  account  of  its  transactions,  be- 
fore, by  reason  of  their  great  number,  they  cease  to 
be  within  their  recollection  and  control." 

1  Wolf  v.  Western  Union  Tel.  Co.,  62  Pa.  St.  83;  S.  C,  1  Am.  Rep. 
387,  389.    A  corresponding  limitation  in  the  contracts  of  common  carriers 


262  STIPULATIONS    LIMITING    LIABILITY. 

§  247.  Limitation  of  Sixty  Days  not  Unreason- 
able.— Applying  this  principle,  it  has  often  been 
held  that  a  stipulation,  endorsed  on  a  telegraph 
message  blank,  that  the  company  would  not  be 
liable  for  damages  in  any  case  where  the  claim  was 
not  presented  in  writing  within  sixty  days  after 
sending  the  message,  is  reasonable,  and  consistent 
with  public  policy.' 

with  their  shippers  is  upheld  on  similar  grounds.  The  question  was  elab- 
orately discussed  in  Southern  Express  Co.  v.  Caldwell,  21  Wall.  (U.  S.) 
264,  and  the  right  to  impose  such  limitations  upon  shippers  was  upheld, 
the  court  saying:  "Our  conclusion,  then,  founded  upon  the  analogous 
decisions  of  courts,  as  well  as  upon  sound  reason,  is  that  the  express 
agreement  between  the  parties  averred  in  the  plea  was  a  reasonable 
one,  and  hence  that  it  was  not  against  the  policy  of  the  law.  It  pur- 
ported to  relieve  the  defendants  from  no  part  of  the  obligations  of  a 
common  carrier.  They  were  bound  to  the  same  diligence,  fidelity  and 
care  as  they  would  have  been  required  to  exercise  if  no  such  agreement 
had  been  made.  All  that  the  stipulation  required  was  that  the  shipper, 
in  case  the  package  was  lost  or  damaged,  should  assert  his  claim  in 
season  to  enable  the  defendants  to  ascertain  the  facts;  in  other  words, 
that  he  should  assert  it  within  ninety  days."     (p.  272). 

1  Young  v.  Western  Union  Tel.  Co.,  38  N.  Y.  Super.  390;  s.  c,  65  N. 
Y.  163;  Wolf  v.  Western  Union  Tel.  Co.,  62  Pa.  St.  83;  s.  c,  1  Am. 
Rep.  387:  Western  Union  Tel.  Co.  v.  Meredith,  95  Ind.  93; 
Western  Union  Tel.  Co.  v.  Jones,  95  Ind.  228;  S.  C,  4S  Am. 
Rep.  713:  Western  Union  Tel.  Co.  v.  Rains,  63  Tex.  27; 
Hill  v.  Western  Union  Tel.  Co.  (Ga.),  11  S.  E.  Rep.  874. 
Compare  Lewis  v.  Great  Western  R.  Co.,  5  Hurl.  &  N.  867;  Ripley  v. 
^Etna  Ins.  Co.,30N.  Y.  136,  163;  Roach  v.  New  York,  etc.  Ins.  Co.,  30 
N.  Y.  546;  Southern  Express  Co.  v.  Caldwell,  21  Wall.  (U.  S.)  264;  Hart 
v.  Pennsylvania  R.  Co.,  112  U.  S.  338.  Similar  provisions  in  policies  of 
insurance  in  regard  to  proofs  of  loss  have  frequently  been  held  good. 
Land  Ins.  Co.  v.  Stauffer,  33  Pa.  St.  397;  Trask  v.  Insurance  Co.,  29  Pa. 
St.  198.  In  Western  Union  Tel.  Co.  v.  Longwill  the  Supreme  Court  of 
New  Mexico  (21  Pac.  Rep.  339)  expressly  held  that  the  sixty  day  limit 
was  against  public  policy  and  void.  The  judge,  however,  relied  for  his 
authority  upon  the  case  of  Johnston  v.  Western  Union  Tel.  Co. 
(U.  S.  C.  C,  S.  D.  Ga.),  33  Fed.  Rep.  362,  and  upon  the  cases  of 
Western  Union  Tel.  Co.  v.  Cobbs,  47  Ark.  344,  and  Western 
Union  Tel.  Co.  v.  McKibben,  114  Ind.  511;  s.  c,  14  N.  E.  Rep.  894. 
Neither  of  these  cases  is  in  point.  In  each  the  suit  was  for  a  statutory 
penalty,  and  the  action  was  maintained  upon  the  ground  that  that  char- 
acter of  action  did  not  come  within  the  terms  of  the  stipulation. 
Post,  §  251. 


MANNER    OF    PRESENTING     CLAIMS.  263 

§  248.      Validity  of   Limitations  of  Less  than  Sixty 

Days. — Some  courts  have  upheld  such  limitations 
where  the  period  was  thirty  days;1  others,  where 
the  period  of  limitation  was  but  twenty  days;2  and 
the  leading  English  case  upholds  such  a  limitation 
where  the  period  was  but  seven  days.3  On  the  other 
hand,  one  American  court  holds,  and  seemingly 
with  better  reason,  that  a  stipulation  fixing  the 
period  of  limitation  at  thirty  days  from  the  date  of 
the  receipt  of  the  message  by  the  transmitting  com- 
pany, is  unreasonable  and  void,  as  tending  to  fraud.4 
§  249.  Circumstances  Under  Which  Such  Limita- 
tions too  Short. — It  can  readily  be  understood  that 
circumstances  might  exist  under  which  such  a  limita- 
tion would  be  unreasonably  short.5  Such  was  the 
opinion  of  Mr.  District  Judge  Speer  in  a  very  well 
reasoned  judgment.  After  reviewing  the  applica- 
tory  decisions  he  said:  "Now,  it  is  held  that  regu- 
lations which  contravene  the  constitutional  law  or 
public  policy  of  the  place  where  they  are  set  up  are 
unreasonable.  Is  a  stipulation  which  has  the  effect 
to  preclude  from  his  right  of  action  the  person  to 
whom  a  prepaid  telegram  is  directed,  and  to  whom 
it  has  never  been   delivered,  no   matter  how  gross 


1  Cole  v.  Western  Union  Tel.  Co.,  33  Minn.  227;  Beasley  v.  Western 
Union  Tel.  Co.,  39  Fed.  Rep.  181;  Western  Union  Tel.  Co.  v.  Dunfield, 
11  Colo.  335;  s.  C,  18  Pae.  Rep.  34;  Am.  &  Eng.  Corp.  Cas.  111. 

2  Aiken  v.  Telegraph  Co.,  5  S.  C.  358;  Heiman  v.  Western  Union  Tel. 
Co.,  57  Wis.  562. 

3  Lewis  v.  Great  Western  R.  Co.,  5  Hurl.  &  N.  867. 

4  Southern  Express  Co.  v.  Caperton,  44  Ala.  101. 

5  For  instance  in  the  case  of  a  common  carrier,  where  a  package  was 
shipped,  during  the  late  civil  war,  when  transportation  was  much  im- 
peded, from  Clayton,  Indiana,  to  Savannah,  Georgia,  it  was  held  that 
such  a  limitation  extending  only  thirty  days  from  the  date  of  the  ship- 
ment was  unreasonable  and  void.  Adams  Express  Co.  v.  Regan,  2i)Ind. 
21. 


264  STIPULATIONS    LIMITING    LIABILITY. 

the  negligence  of  the  telegraph  company  may  be, 
a  reasonable  regulation?  In  the  opinion  of  this 
court  it  is  clearly  unreasonable,  and,  besides,  con- 
trary to  general  public  policy.  He  must  present 
his  claim  in  writing,  in  thirty  days  from  the  time 
the  telegram  is  sent;  but  the  failure  of  the  company 
to  deliver  it  deprives  him,  perhaps,  of  all  notice 
that  a  telegram  has  been  sent  to  him.  How,  then, 
can  he  be  expected  to  make  a  claim  for  damages 
when  he  may  be  unconscious  of  the  injury  done 
him?  If  the  stipulation  is  valid,  the  telegraph  com- 
pany can  very  readily  defeat  all  redress  by  holding 
the  telegram  for  thirty  days  after  it  is  sent.  Take 
this  case:  The  plaintiff,  assuming,  ex  gratia  exempli, 
his  statements  to  be  true,  is  a  farmer  who  lives  six 
miles  in  the  country;  he  has  business  negotiations 
important  to  him,  but  unimportant  to  his  correspond- 
ent in  Omaha;  he  leaves  his  address  at  the  tele- 
graph office;  he  calls  repeatedly  for  his  telegram ; 
he  is  informed  there  is  nothing  for  him;  the  tele- 
graph company  wires  the  Omaha  firm  that  there  is 
no  such  man  as  the  plaintiff;  they  drop  the  matter; 
not  receiving  his  telegram  he  drops  it;  after  the  ex- 
piration of  thirty  days  he  discovers  the  injury  done 
him.  Would  any  court  of  justice  hold  that  it  would 
be  reasonable,  under  such  circumstances  to  deny  his 
right  of  action  ?  And  yet  if  the  thirty  days'  stip- 
ulation is  valid  at  all  it  would  be  valid  in  that  case. 
Such  a  stipulation  would  be  especially  unreasonable 
when  the  company,  because  of  its  monopoly,  has 
the  power  to  deprive  the  citizen  of  the  means  of 
telegraphic  communication,  unless  he  will  subscribe 
to  its  regulations,  however  unreasonable.  I  cannot 
recognize  the  doctrine   as  insisted   by   defendant's 


MANNER    OF    PRESENTING    CLAIMS.  265 

counsel."1  This  reasoning  seems  to  be  unanswera- 
ble, especially  in  its  application  to  such  a  case  as  is 
understood  to  have  been  before  the  court,  a  case 
where  the  message  was  not  delivered  until  the  pe- 
riod of  limitation  had  expired. 

§    250.      Thirty   Days'    Limitation  with    Knowledge 

of  Loss  Sufficient. — On  the  other  hand,  it  was  said  by 
Lewis,  P.  J.,  in  giving  the  opinion  of  the  St. 
Louis  Court  of  Appeals  upholding  a  period  of  lim- 
itation of  thirty  days:  "An  agreement  between  par- 
ties to  a  contract,  limiting  a  reasonable  time  within 
which  a  claim  of  damages  may  be  preferred,  is  now 
universally  held  to  be  binding,  on  the  strength  of 
the  maxim,  conventio  vincit  legem.  When  a  definite 
term  is  fixed,  the  question  of  its  reasonableness  is 
to  be  determined  by  the  court.  Where  the  only 
limitation  is  that  a  thing  shall  be  done  within  a 
reasonable  time,  it  is  proper  for  the  jury  to  say  what 
is  a  reasonable  time,  in  the  circumstances  of  the  case. 
No  precedent  has  denied  that  thirty  days  constitute 
a  reasonable  time,  in  cases  similar  to  the  present. 
So  far  from  it,  twenty  days  have  been  authoritatively 
held  sufficient.2  But  the  plaintiffs  insist  that  the 
question  of  reasonable  time  must  be  determined 
in  each  case  by  its  particular  circumstances.  This 
is  true  only  with  certain  qualifications.  There  have 
been  cases  in  which  the  party  claiming  damages 
could  not  possibly  have  been  made  aware  of  his  loss 
until  after  it  was  too  la-te  to  claim  within  the  limited 
time.  No  case  can  be  found,  however,  in  which, 
where  there  was  sufficient  time  left,  after  the  dis- 
covery of  the  loss,  for  the  claim  to  be  presented 

Johnston   v.  Western  Union  Tel.  Co.,  (U.  S.  C.  C,  S.  D.  Ga.),  33 
Fed.  Rep.  362,  365. 
2  Citing  Heiman  v.  Telegraph  Co.,  57  Wis.  562. 


266  STIPULATIONS    LIMITING    LIABILITY. 

within  the  limited  period,  the  plaintiff  was  absolved 
from  the  effect  of  the  limitation  by  the  lateness  of 
his  discovery.1 

6  251.  Whether  Applicahle  to  Actions  for  Stat- 
utory Penalties. — Even  w7here  it  is  held  that  a  tele- 
graph company  cannot  by  contract  evade  the  pen- 
alty prescribed  by  statute  for  a  breach  of  its  duty  in 
sending  messages,  the  courts  recognize  the  reasona- 
bleness of  this  rule,  by  holding  that  such  a  company 
may  lawfully  contract  that  any  claim  for  the  statu- 
tory penalty  must  be  made  writhin  sixty  days.2  Such 
a  stipulation,  however,  does  not  bind  the  person  ad- 
dressed where  he  proceeds  under  another  section  of 
the  same  statute.'  Other  courts  hold  that  such  a 
clause  in  a  message  blank  does  not  apply  in  an  ac- 
tion to  recover  a  penalty  under  a  statute  for  neglect 
to  transmit  a  message,4  or  for  negligent  delay  in  de- 
livering it.5 

§  252.  Applies  only  in  Cases  Where  Message  is 
Sent. — Astipulation  limiting  the  time  "after  the 
sending  of  the  message  "  within  which  an  action 
for  a  breach  of  contract  to  transmit  and  deliver  a 
telegram  must  be  brought,  has  no  application  until 
some  effort  has  been  made  by  the  company  to  per- 
form, or  attempt  to  perform  the  contract.6  It  applies 
only  to  cases  where  the  message  is  sent:  if  there  is  a 


1  Massengale  v.  Western  Union  Tel.  Co.,  17  Mo.  App.  257,  260. 

2  Western  Union  Tel.  Co.  v.  Jones,  95  Ind.  228;  s.  c,  48  Am.  Rep.  713. 

3  Western  Union  Tel.  Co.  v.  McKibben,  114  Ind.  511  (decided  under 
Sec.  4177  Rev.  Stat.  Ind.,  and  distinguishing  cases  decided  under  Sec. 
4176  of  the  same  statute). 

*  Western  Union  Tel.  Co.  v.  Cooledge  (Ga.),  12  S.  E.  Rep.  264. 

5  Western  Union  Tel.  Co.  v.  Cobbs,  47  Ark.  344;  s.  c,  1  S.  W.  Rep. 
558. 

6  Western  Union  Tel.  Co.  v.  Way,  83  Ala.  542;  S.  c,  4  South.  Rep. 
844. 


MANNER    OF    PRESENTING    CLAIMS.  267 

total  failure  to   transmit,  no  written  notice   or  de- 
mand is  required  to  fix  liability.1 

§  253.      What    not   a   Waiver    of  Written  Notice. — 

The  promise  of  an  agent,  when  the  complaint  is 
made  orally,  to  look  into  the  matter,  has  been  held, 
on  questionable  grounds,  not  a  waiver  of  the  right 
to  demand  a  written  notice  of  the  claim.2  But  it 
has  been  held  that  a  refusal  of  the  agent  or 
manager  on  duty  at  the  station  from  which  a  mes- 
sage was  sent,  to  pay  a  claim  for  damages  for  negli- 
gence in  transmitting  or  delivering  the  message, 
upon  the  sole  ground  that  the  company  was  not  to 
blame,  constitutes  a  waiver  of  a  condition  requiring 
written  notice  of  the  claim  within  a  time  limited.3 
§  264.  Notice  must  be  Delivered  to  Authorized 
Agent. — The  notice  must  be  delivered  to  some  agent 
of  the  company  authorized  to  receive  it.  A  mere 
operator  has  not,  in  the  absence  of  a  showing  to  the 
contrary,  any  such  authority,  any  more  than  an 
artisan  employed  by  a  manufacturing  corporation 
would  have  authority  to  receive  such  a  notice  for 
the  corporation.  Accordingly,  where  an  imperfect 
statement  of  a  claim  for  damages  was  presented,  by 
an  agent  of  the  person  claiming  damages,  to  an 
operator  or  receiving  clerk  of  the  company,  who, 
after  examining  it,  handed  it  back  to  the  person 
presenting  it,  stating  that  he  had  nothing  to  do 
with  it,  and  referring  him  at  the  same  time  to  the 
officers  of  the  company,  and  he  thereupon  went  to 

1  Western  Union  Tel.  Co.  v.  Yopst,  118  Ind.  248;  s.  c,  21  Am.  and 
Eng.  Corp.  Cas.  88;  25  Id.  514;  3  L.  R.  A.  224;  20  N".  E.  Rep. 
222.  See  also  Western  Union  Tel.  Co.  v.  Dunfield,  11  Colo.  335;  Ben- 
nett v.  Western  Union  Tel.  Co.,  18  N.  Y.  State  Rep.  777;  2  N.  Y.  Supp. 
365. 

2  Massengale  v.  Western  Union  Tel.  Co.,  17  Mo.  App.  257. 

3  Hill  v.  Western  Union  Tel.  Co.  (Ga.),  11  S.  E.  Rep.  874. 


268  STIPULATIONS    LIMITING    LIABILITY. 

their  rooms  and  found  them  absent,  and  no  other 
claim  was  presented  until  after  the  expiration  of 
sixty  days,  it  was  held  that  the  compan}'  was  not 
liable.1  But  where  the  plaintiff  informed  the  oper- 
ator of  a  mistake  in  transmitting  a  message,  and 
was  by  him  referred  to  the  principal  office,  where  a 
clerk  told  him  that  the  manager  was  busy,  and  took 
down  his  complaint  in  writing,  and  handed  it  to  a 
person  in  another  room,  whom  he  introduced  as 
attorney  of  the  company,  which  attorney  promised 
to  investigate  the  matter,  and  afterwards,  in  reply 
to  the  plaintiff's  inquiry,  wrote  a  letter  rejecting 
the  claim,  using  paper  and  an  envelope  with  printed 
headings  representing  him  to  be  the  attorney  of  the 
company — it  was  held  that  it  sufficiently  appeared 
that  complaint  was  made  to  the  proper  authorities.2 
On  the  other  hand,  it  has  been  held  that  the  agent 
or  manager  of  a  telegraph  company  on  duty  at  the 
station  from  which  a  message  was  sent,  is  a  proper 
person  upon  whom  to  make  demand  for  damages 
claimed  for  negligence  in  transmitting  or  delivering 
the  message,  and  is  competent  to  recognize  an  act 
upon  an  oral  demand,  and  thus  waive  any  condi- 
tion requiring  notice  to  be  in  writing.3 

§  255.  When  the  Limitation  Begins  to  Run. — 
Without  impugning  the  foregoing  reasoning  that 
the  period  of  limitation  begins  to  run  from  the  date 
of  the  delivery  of  the  message  to  the  transmitting 
company,  and  that  "a  delay  in  receiving  the  mes- 
sage, though  occasioned  by  the  mistake  of  the  com- 
pany, would  not  modify  the  condition  or  extend  the 

1  Young  v.  Western  Union  Tel.  Co.,  65  N.  Y.  163. 

2  Bennett  v.  Western  Union  Tel.  Co.,  18  N.  Y.  St.  Rep.  777;  s.  c,  2 
N.  Y.  Supp.  365. 

3  Hill  v.  Western  Union  Tel.  Co!  (Ga.),  11  S.  E.  Rep.  874. 


MANNER    OF    PRESENTING    CLAIMS.  269 

time,  if  a  reasonable  time  was  left,  after  knowledge  of 
the  mistake,  to  present  the  claim.'"1  No  well  con- 
sidered case  can  be  found,  however,  in  which,  when 
there  was  sufficient  time  left,  after  discovery  of  the 
loss,  for  the  claim  to  be  presented  within  the  limited 
period,  the  plaintiff  was  absolved  from  the  effect  of 
the  limitation  by  the  lateness  of  his  discovery.2 

§  256.  Commencement  of  Suit  Equivalent  to  Notice 
in  Writing-. — The  general  rule,  subject  to  exceptions, 
is  that  the  commencement  of  an  action  is  equivalent 
to  a  demand;  and,  by  analogy  to  this,  it  has  been 
held  that  in  case  of  a  claim  for  damages  against  a 
telegraph  compan}7  for  failure  to  deliver  a  message, 
Avhich  is  required  to  be  presented  in  writing  within 
sixty  days,  the  bringing  of  suit  therefor,  and  service 
of  process  within  the  time,  is  equivalent  to  such  pre- 
sentation.3 

1  Heiraan  v.  Western  Union  Tel.  Co.,  57  Wis.  562. 

2  Massengale  v.  Western  Union  Tel.  Co.,  17  Mo.  App.  257. 

3  Western  Union  Tel.  Co.  v.  Henderson,  89  Ala.  510;  s.  c,  7  South. 
Rep.  419;  30  Am.  &  Eng.  Corp.  Cas.  615. 


270  CONNECTING    LINES. 


CHAPTER   IX. 

CONNECTING   LINES. 

• 
Section. 

261.  Statutory  Obligation  to  Forward  Dispatches  Delivered  by  Con- 

necting Lines. 

262.  Not  Liable  for  Defaults  of  Connecting  Lines. 

263.  May  Stipulate  against  Liability  for  Defaults  of  Connecting  Lines. 

264.  May  Become  so  Liable  by  Contract. 

265.  Reasonableness  of    Particular  Regulations  as  to   Connecting 

Lines. 

266.  Evidence  of  Negligence  where  Dispatch  Received  from  Con- 

necting Line. 

267.  Illustration :      Negligence    of     Connecting    Line— Change    of 

Address. 
26S.    Company  Receiving  Message  from   Connecting  Line    cannot 
Avail  Itself  of  Conditions  in  Message  Blank. 

§  261.  Statutory  Obligation  to  Forward  Dis- 
patches Delivered  by  Connecting-  Lines. — By  statutes 
previously  referred  to,1  it  is  generally  incumbent 
upon  telegraph  companies  to  receive  and  transmit 
the  dispatches  offered  by  other  companies,  as  well  as 
those  offered  by  the  public  generally.  In  case  of  a 
refusal  by  one  line  to  forward  the  messages  of  an- 
other company,  an  action  may  be  maintained  by 
the  company  for  the  statutory  'penalty,  although  it 
was  expressly  constituted  the  agent  of  the  sender 

1  Ante,  §  157. 


LIABILITY    FOR    DEFAULTS.  271 

for  the  transmission  of  the  message.1  This  conclu- 
sion becomes  more  clear,  when  it  is  considered  that 
the  forwarding  of  messages  by  connecting  lines  is 
not  always  a  voluntary  undertaking  on  the  part  of 
the  receiving  company  ;  though  in  most  cases  the 
interest  of  such  companies  would  lead  them  to  make 
arrangements  of  this  kind,  just  as  connecting  lines 
of  carriers  do.  But,  as  telegraph  companies  are 
generally  under  an  obligation  by  statute2  to  forward 
the  dispatches  of  other  companies,  the  reasonable 
conclusion  would  be  that  such  a  company  is  not  re- 
sponsible for  the  manner  in  which  the  connecting 
company  performs  the  service ;  for  it  would  be  a 
hard  law  that  would  force  two  such  undertakers  in 
business  relations,  and  at  the  same  time  make  them 
liable  for  each  other's  defaults.3 

§  262.  Not  Liable  for  Defaults  of  Connecting-  .Lines. 
— Where  the  dispatch  must  be  sent  over  a  con- 
necting line  operated  by  another  company  in  order 
to  reach  its  destination,  there  is  no  implication  of 
law  that  the  company  receiving  the  message  con- 
tracts for  the  entire  transit.  In  the  absence  of  an 
express  undertaking,  it  undertakes  for  care  and  at- 
tention in  transmitting  it  over  its  own  line,  and  for 

1  United  States  Tel.  Co.  v.  Western  Union  Tel.  Co.,  56  Barb.  (1ST.  Y.) 
46.  But  it  would  seem  that  the  sender  might  sustain  this  action  in 
such  a  case.  Thurn  v.  Alta  California  Tel.  Co.,  15  Cal.  472;  Baldwin 
v.  United  States  Tel.  Co.,  54  Barb.  (X.  Y.)  505;  Leonard  v.  New  York, 
etc.  Tel.  Co.,  41  N.  Y.  544;  Squire  v.  Western  Union  Tel.  Co.,  98  Mass. 
232. 

2  Ante,  §  158. 

3  In  Alabama  it  is  said  that  a  telegraph  company  is  not  compelled  by 
any  public  duty  to  receive  messages  for  transmission  beyond  its  own 
lines,  or  to  secure  such  transmission ;  and  if  such  service  be  undertaken, 
it  may  fix  terms,  eonditions  and  regulations,  not  contrary  to  law  or 
public  policy,  upon  which  it  will  receive  and  undertake  to  secure  the 
transmission  of  cablegrams  to  points  of  destination  in  foreign  coun- 
tries. Western  Union  Tel.  Co.  v.  Way,  83  Ala.  542;  s.  c,  4  South.  Rep. 
844. 


272  CONNECTING    LINES. 

its  prompt  delivery  to  a  competent  connecting  com- 
pany for  further  transmission.  When  it  is  so  de- 
livered, its  liability  terminates,  and  that  of  the 
connecting  company  begins.1"  In  other  words,  no 
partnership  or  mutual  agency  can  be  inferred  to 
exist  between  coterminous  lines  of  telegraph,  from 
the  fact  that  each  receives  messages  from  the  other 
for  transmission  over  its  own  lines,  as  required  by 
law.  In  the  absence  of  any  special  agreement  or 
arrangement,  either  with  the  sender  of  the  message 
or  with  each  other,  each  company  is  liable  only  for 
its  own  defaults.2 

§  263.  May  Stipulate  against  Liability  for  De- 
faults of  Connecting-  Lines. — "This  being  the  legal 
status  of  the  company,"  says  Mr.  Freeman,  "it 
seems  clear  that  it  may  stipulate  with  the  sender  of 
a  message  that  the  company  shall  be  '  hereby  made 
the  agent  of  the  sender,  without  liability,  to  for- 
ward any  message  over  the  lines  of  any  other 
company  when  necessary  to  reach  its  destination.' 
It  is  a  matter  upon  which  the  company  is  compe- 
tent to  contract  specially,  and  the  stipulation  is 
reasonable  in  its  terms."3  That  such  a  company 
may  stipulate  with  the  sender  of  messages  against 
the  errors,  negligences,  or  other  defaults  of  con- 
necting lines,  is  the  undoubted  law.4 

1  Leonard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544;  s.  C,  1  Am.  Rep. 
446;  Baldwin  v.  United  States  Tel.  Co.,  45  X.  Y.  744  (reversing  s.  C.,34 
Barb.  (N.  Y.)  505;  1  Lans.  (X.  Y.)  125;  6  Abb.  Pr.  (X.  S.  (X.  Y.)  405). 

2  Baldwin  v.  United  States  Tel.  Co.,  45  X.  Y.  744;  s.  c,  6  Am.  Rep. 
165;  Squire  v.  AVestern  Union  Tel.  Co.,  98  Mass.  232;  Leonard  v.  Xew 
York,  etc.  Tel.  Co..  41  X.  Y.  544,  570;  Stevenson  v.  Montreal  Tel.  Co., 
16  Upper  Canada  Q.  B.  539.  Contra:  De  Rutte  v.  Xew  York,  etc.  Tel. 
Co.,  1  Daly  (X.  Y.),  547;  s.  c,  30  How.  Pr.  (X.  Y.),  403. 

3  Note  to  Camp  v.  Western  Union  Tel.  Co.,  71  Am.  Dec.  471. 

4  Western  Union  Tel.  Co.  v.  Carew,  15  Mich.  525;  s.  C,  2  Thonip. 
Xeg.  829;   Western  Union  Tel.  Co.  v.  Munford,  87  Tenn.  190. 


LIABILITY    FOR    DEFAULTS.  273 

§    264.      May   Become  so   Liable  by   Contract. — On 

the  other  hand,  there  is  no  rule  of  law  or  principle 
of  public  policy  which  prevents  a  telegraph  com- 
pany from  making  itself  liable  by  contract  for  the 
negligence  or  defaults  of  connecting  lines.  Accord- 
ingly, it  has  been  held  that,  where  a  telegraph  com- 
pany agrees  with  a  customer  to  furnish  him  with 
dail}7  reports  of  the  grain  market  in  a  distant  city, 
and  these  reports,  as  furnished  by  the  company  to 
the  customer,  are  incorrect,  the  company  is  liable 
for  the  damages,  although  it  has  received  the  re- 
ports over  a  connecting  line,  and  although  the  mis- 
take may  have  Jbeen  due  to  the  negligence  of  the 
servants  of  the  connecting  line.  "In  undertaking 
to  furnish  reports  of  the  markets,  they  bound  them- 
selves to  furnish  true  reports,  and  they  would  be 
liable  for  sending  those  which  would  tend  to  deceive 
plaintiff,  and  thus  subject  him  to  loss."1 

§  265.  Reasonableness  of  Particular  Regulations 
as  to  Connecting-  Lines. — A  regulation  which  requires 
the  name  of  the  company  from  which  the  message 
is  received,  and  the  date  of  the  receipt,  to  be  added 
to  every  message  which  it  accepts  from  other  com- 
panies for  transmission  to  Europe,  and  which  de- 
mands an  additional  sum  for  the  transmission  of 
this  addition,  has  been  held  reasonable  and  valid.2 
But  a  regulation  which  required  that,  when  a  mes- 
sage is  received  from  another  company  at  New  York 
for  transmission  to  Europe,  a  power  of  attorney  from 
the  sender  of  the  message  must  be  produced,  author- 

1  Turner  v.  Hawkeye  Tel.  Co..  41  Iowa,  458;  s.  C,  20  Am.  Rep.  605, 
608;  Bank  of  New  Orleans  v.  Western  Union  Tel.  Co..  27  La.  An.  49. 

2  Atlantic,  etc.  Tel.  Co.  v.  Western  Union  Tel.  Co.,  4  Daly  (N.  Y.), 

:.-J7. 

(18) 


274  CONNECTING    LINES. 

izing  it  to  forward  the  message,  has  been  held  un- 
reasonable and  void.1 

§  266.  Evidence  of  Negligence  where  Dispatch 
Received  from  Connecting:  Line. — Where  the  dis- 
patch received  from  a  connecting  line  is  erroneously 
delivered,  it  is  presumed,  in  the  absence  of  evidence 
to  .the  contrary,  that  it  was  correctly  delivered  to 
the  defendant  by  the  connecting  line,  and  that  the 
error  happened  through  the  negligence  of  the  de- 
fendant.2 The  reason  is  that,  if  the  defendant  is 
innocent  of  committing  the  error,  it  has  within  its 
power  the  means  of  showing  that  it  transmits  the 
dispatch  as  it  was  delivered  to  it  by  the  connecting 
line,  and  the  plaintiff  has  not  the  means  of  show- 
ing what  the  real  fact  was.3  This  is  in  accordance 
with  what  has  been  held  concerning  the  liability  of 
a  common  carrier,  where  there  has  been  a  through 
contract  of  shipment  over  several  connecting  lines. 
Here,  if  the  last  carrier  makes  only  a  partial  deliv- 
ery of  the  goods,  he  must  account  for  the  loss  or 
pay'  damages.4 

§  267.  Illustration  :  Negligence  of  Connecting 
Line — Change  of  Address. — Although  the  address 
of  a  telegraphic  message  is  negligently  changed  in 
transmitting  it  to  the  connecting  line,5  yet  if  it  ap- 
pears that  the  loss  for  which  the  action  is  brought 
was  occasioned  by  a  delay  in  the  delivery  of  the 
message,  which  did  not  proceed  from   such   error, 

1  Atlantic,  etc.  Tel.  Co.  v.  Western  Union  Tel.  Co.,  4  Daly  (N.  Y.),  527. 

2  Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458;  s.  c,  20  Am.  Kep.  605; 
Lagrange  v.  Southwestern  Tel.  Co.,  25  La.  An.  383. 

3  Lagrange  v.  Southwestern  Tel.  Co.,  supra. 

4  Southern  Exp.  Co.  v.  Hess,  53  Ala.  19, 24;  Laughlin  v.  Railroad  Co., 
43  Barb.  (N.  Y.)  225;  s.  c,  affirmed,  see  index  41  N.  Y.  620;  Lin  v. 
Terre  Haute,  etc.  R.  Co.,  10  Mo.  App.  125. 

5  In  this  case,  from  "Col.  Sam.  Tate  "  to  "Col.  William  Tate." 


LIABILITY    FOR    DEFAULTS.  275 

but  was  the  sole  result  of  the  subsequent  and  inde- 
pendent negligence  of  the  connecting  company,  the 
receiving  company  is  not  liable  for  the  damages  sus- 
tained, under  a  contract  with  the  sender  exonerating 
itself  from  liability  for  the  defaults  of  connecting 
lines.  The  reason  is  that  the  change  of  address  is 
not  the  proximate  cause  of  the  loss.1 

§  268.  Company  Receiving-  Message  from  Con- 
necting Line  Cannot  Avail  Itself  of  Conditions  in 
Message  Blank. — Where  a  telegraph  company  re- 
ceives a  message  for  transmission  to  a  distant  point 
over  its  own  line,  and  thereafter  over  a  connecting 
line,  upon  its  message  blank,  in  which  the  receiving 
company  assumes  "no  liability  for  any  error  or  neg- 
lect by  any  other  company  over  whose  lines  this 
message  may  be  sent  to  reach  its  destination,"  and 
the  message  is  not  delivered  within  a  reasonable 
time,  in  consequence  of  the  negligence  of  the  agents 
of  the  connecting  line,  and  the  sender  of  the  dis- 
patch brings  an  action  against  such  connecting  com- 
pany for  damages,  the  defendant  cannot  avail  itself 
of  another  condition  in  the  blank  of  the  original 
compan}^  receiving  the  message,  limiting  the  liability 
of  that  company  in  case  of  the  message  not  being 
repeated.  In  so  holding,  the  court,  speaking  through 
Bigelow,  C.  J.,  said:  "The  terms  and  conditions  on 
which  the  message  was  received  and  transmitted  by 
the  company  at  Boston  to  the  defendants  at  Albany 
[the  receiving  company],  do  not  purport  on  their 
face  to  be  intended  to  apply  to  the  service  which 
might  be  performed  by  any  other  company  in  the 
transmission  of  the  message  beyond  the  terminus  of 
the  line  of  the  company  to  which  it  was  first  deliv- 

1  Western  Union  Tel.  (Jo.  v.  Munford,  87  Tenn.  190;  8.  C,  10  Am.  St. 
Rep.  630;    10  S.  W.  Rep.  151 3. 


276  CONNECTING    LINES. 

ered.  Not  only  are  these  terms  and  conditions  ex- 
pressly limited  to  the  company  first  receiving  the 
message,  but  it  is  also  distinctly  stipulated  that  no 
liability  is  assumed  for  any  error  or  neglect  by  any 
other  company  by  which  the  message  may  be  sent 
in  order  to  reach  its  destination,  clearly  indicating 
an  intent  to  apply  the  special  terms  and  conditions 
to  their  own  contract  only,  and  to  the  service  which 
the}'-  undertook  to  perform,  and  not  to  extend  them 
beyond  their  own  line,  so  as  to  qualify  or  control 
the  liability  which  other  companies  might  assume 
in  the  transmission  of  the  message.  No  evidence 
was  offered  at  the  trial  to  show  that  the  defendants 
[the  connecting  line]  had  in  any  way  restricted  their 
general  liability  for  the  service  which  they  under- 
took to  render,  or  that  they  had  ever  authorized  the 
company  in  Boston  to  enter  into  special  stipulations 
in  their  behalf,  or  that  the  plaintiff  had  any  notice  of 
their  usages  or  mode  of  doing  business,  or  that  they 
did  , not  intend  to  assume  the  liability  which  the 
law  affixed  to  the  employment  which  they  held 
themselves  out  to  the  public  as  read}r  to  carry  on. 
The  case,  therefore,  stands  as  an  action  for  damages 
for  breach  of  a  contract  entered  into  by  the  defend- 
ants through  their  authorized  agent,  to  which  no 
special  stipulations  or  restrictions  on  their  liability 
were  attached,  and  on  which  they  are  to  le  held 
responsible  according  to  the  general  rules  of  law."1 

1  Squire  v.  Western  Union  Tel.  Co.,  98  Mass.  232;  s.  c,  93  Am.  Dec. 
157.  Compare  Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744,  s.  c, 
0  Am.  Rep.  16"),  where  this  case  is  cited  to  the  point  that  each  of  two 
connecting  telegraph  lines  must  answer  for  its  own  defaults  only. 


EVIDENCE  OF  NEGLIGENCE.  277 


CHAPTER   X. 

NEGLIGENCE  BY  TELEGRAPH  COMPANIES. 

Article  I.         Evidence  of  Negligence  Generally. 
Article  II.        In  Cases  of  Non-Delivery. 
Article  III.      In  Cases  of  Delay. 


Article  I.— EVIDENCE    OF   NEGLIGENCE. 

Section. 

273.  When  the  Happening  of  an  Accident  is  Evidence  of  Negligence : 

Ees  Ipsa  Loquitur. 

274.  The  Undertaking  and  Failure  Constitute  Prima  Facie  Evidence 

of  Negligence. 

275.  Failure  to  Transmit. 

276.  Error  in  Transmission. 

277.  How  in  Cases  where  there  is  a  Stipulation  against  Liability 

unless  the  Message  is  Repeated. 

278.  Incongruity  of  these  Holdings  Pointed  out. 

279.  A  Corresponding  Divergence  of  Opinion  in  the  Case  of  Com- 

mon Carriers. 

280.  What  Circumstances  Afford  Evidence  of  "Gross  Negligence." 

281.  Evidentiary  Circumstances  Rebutting  this  Prima  Facie  Case. 

282.  Burden  as  to  Free  Delivery  Limits. 

§  273.      When   the   Happening-    of    an    Accident    is 
Evidence     of     Negligence :       Res     Ipsa     Loquitur. — It 

may  be  stated  with  confidence,  as  a  general  prin- 
ciple of  law,  that  where  an  accident  happens  which, 
in  the  ordinary  course  of  things,  and   according  to 


278  NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

common  experience,  would  not  happen  if  reason- 
able or  ordinary  care  were  exercised  to  prevent  it 
by  the  person  whose  duty  it  is  to  prevent  it,  the 
happening  of  the  accident  is  of  itself  evidence  of 
negligence  sufficient,  in  an  action  for  the  resulting 
damages  against  the  person  guilty  of  the  default,  to 
warrant  a  jury  in  giving  a  verdict  for  the  plaintiff.1 
This  principle  was  thus  formulated  by  Mr.  Chief 
Justice  Erle  in  the  following  language:  "Where 
the  thing  is  shown  to  be  under  the  management  of 
the  defendant  or  his  servants,  and  the  accident  is 
such  as,  under  an  ordinary  course  of  things,  does 
not  happen  if  those  who  have  the  management  use 
proper  care,  it  affords  reasonable  evidence,  in  the 
absence  of  explanation  by  the  defendants,  that  the 
accident  arose  from  want  of  care. '  '2  The  principle  is 
of  special  application  in  cases  of  bailment,  and  in 
other  like  cases,  where  a  party  undertakes,  for  a  re- 
ward paid  or  to  be  paid  to  him  by  another,  to  do 
for  that  other  a  certain  definite  thine-,  and  then  for 
some  undisclosed  reason,  fails  to  do  it;  in  every 
such  case,  the  assumption  of  the  obligation  and  the 
failure  to  perform  it  constitutes  evidence  of  negli- 
gence, and  this  being  proved,  the  burden  is  cast 
upon  him  of  excusing  his  default.  For  instance,  a 
carrier  undertakes,  for  a  reward,  to  carry  a  person 
from  one  place  to  another.  He  is  not,  by  the  rules 
of  the  common  law,  an  insurer,  as  is  the  carrier  of 
goods,  but  he  is  under  an  obligation  to  use  such 
skill  and  care  as  the  important  and  serious  nature 
of    his    undertaking    demands.     The    passenger   is 


1  See  the  observations  of  Lord  Cockburn,  in  Kearney  v.  Railroad  Co., 
L.  R.  5  Q.  B.  411,  and  L.  R.  4  Q.  B.  759;  s.  C,  2  Thomp.  Neg.  220. 

2  Scott  v.  Dock  Co.,  11  Jur.  (N.  S.)  1108. 


EVIDENCE  OF  NEGLIGENCE.  279 

hurt  in  the  transit,  from  some  cause  not  manifestly 
beyond  the  control  of  the  carrier.  The  law  casts 
the  burden  upon  him  to  show  that  the  accident 
took  place  without  his  fault.1  So,  if  a  bailee  re- 
ceives goods  to  keep  and  fails  to  deliver  them,  this 
is  prima  facie  evidence  to  charge  him,  and  he  must 
explain  or  pay  damages.2  So,  in  the  case  of  a  com- 
mon carrier  of  goods,  where  there  is  a  special  con- 
tract releasing  him  from  the  onerous  liability  of  the 
common  law,  if  he  fails  to  deliver  the  goods  at  the 
end  of  the  transit,  in  accordance  with  the  contract 
of  affreightment,  he  must  excuse  himself  or  pay 
damages.3  All  these  cases  are  cases  for  the  applica- 
tion of  the  maxim  res  ipsa  loquitur — the  thing  itself 
speaks.  Beyond  question,  in  the  case  where  a  com- 
pany engaged  in  the  transmission  of  written  mes- 
sages by  telegraph,  fails  to  deliver  a  message 
seasonably  and  correctly,  in  accordance  with  its 
undertaking,  the  two  facts  of  the  undertaking  and 
the  default  make  out  a  case  of  negligence  sufficient 
to  charge  such  company  with  the  payment  of  dam- 
ages, unless  it  produces  an  explanation  sufficient 
in  law,  and  proves  it  to  the  satisfaction  of  the  jury. 
§  274.  The  Undertaking  and  Failure  Constitute 
Prima  Facie  Evidence  of  Negligence. — Numerous 
cases  uphold  this  principle  in  actions  for  damages 
against  telegraph  companies  for  failing  to  transmit 
and  deliver  messages  with  reasonable  diligence  and 
correctly,  in  accordance  with  their  undertaking. 
Under  this  rule,  a  prima  facie  case  is  made  by 
proving  the  delivery  of  the  message  to  the  telegraph 

1  See   cases   collected   in   Dougherty   v.  Missouri  Pac.  R.  Co.,  0  Mo. 
App.  478. 

2  2  Thomp.  Tr.  §  1832. 

3  Ibid.  §§  1832,  1S33. 


280         NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

company  for  transmission,  with  the  payment  ex- 
tender of  the  customary  and  usual  charge,  and  of 
the  non-delivery  by  the  company  of  the  message  to 
the  person  addressed,  and  of  the  damages  which 
have  resulted  to  the  plaintiff  from  such  non-deliveiy . 
"It  is  not  necessary  that  they  show  affirmatively 
that  the  failure  to  deliver  happened  through  any 
omission  of  duty  by  the  company  or  its  officers,  or 
from  some  defect  in  the  instrumentalities  employed 
by  the  company.  The  failure  to  deliver  being 
shown,  the  legal  presumption  is  that  it  was  caused  by 
some  one  or  the  other  of  these  causes,  or  of  all  com- 
bined. It  then  becomes  incumbent  on  the  defend- 
ant, if  it  would  relieve  itself  from  the  consequences 
of  such  presumption,  to  overcome  that  presumption 
by  showing  that  in  the  attempted  transmission  and 
delivery  of  the  message,  it  exercised  all  proper  care 
and  diligence  commensurate  with  the  undertaking, 
and  that  the  failure  is  not  attributable  to  any  fault 
or  negligence  on  its  part,  or  that  of  any  of  its 
employees."1 

§  275.  Failure  to  Transmit. — Thus,  where  a  tele- 
graph company  receives  a  message  for  transmission 
and  sends  it  to  an  intermediate  point,  and  does  not 
send  it  further,  and  gives  no  reason  for  its  failure, — 
this  is  evidence  of  gross  negligence  sufficient  to  charge 
it  with  the  damages  which  the  sender  of  the  message 


1  Fowler  v.  Western  Union  Tel.  Co.,  SO  Me.  381;  s.  c,  6  Am.  St.  Rep. 
211.  216;  15  Atl.  Rep.  29;  38  Alb.  L.  J.  276;  16  Wash.  L.  Rep.  591; 
4  Rail.  &  Corp.  L.  J.  346.  Citing  Bartlett  v.  Western  Union  Tel. 
Co.,  62  Me.  209,  221;  s.  C,  16  Am.  Rep.  437;  Baldwin  v.  United  States 
Tel.  Co.,  45  N.  Y.  744;  s.  c.  6  Am.  Sr.  Rep.  165;  Western  Union  Tel. 
Co.  v.  Graham,  1  Colo.  230;  s.  c,  9  Am.  Rep.  136;  United  States  Tel. 
Co.  v.  Wenger,  55  Pa.St.  262;  s.  c,  93  Am.  Dec.  751. 


EVIDENCE  OF  NEGLIGENCE.  281 

has  thereby  sustained.1  So,  under  a  statute  2  making 
it  the  duty  of  telegraph  companies  to  transmit  mes- 
sages "with  impartiality  and  good  faith,  under  the 
penalty  of  $100  for  every  neglect  or  refusal  so  to 
do,"  on  proof  that  the  company's  agent  received 
the  message  but  did  not  deliver  it,  negligence  will 
be  presumed,  and  the  company  must  show  a  suffi- 
cient excuse  or  pay  damages.3 

§  276.  Error  in  Transmission. — A  telegraph  com- 
pany is  bound  to  transmit  a  message  in  the  form  and 
language  in  which  it  is  written ,  and  if  it  has  com- 
mitted an  error  in  transmitting  the  message,  the 
plaintiff,  in  the  view  of  many  courts,  makes  out  a 
prima  facie  case  "by  proving  the  fact  of  the  error  and 
the  damages.4  For  instance,  the  omission  of  a  ma- 
terial ivord  in  the  transmission  of  a  telegraphic  mes- 
sage raises  a  prima  facie  presumption  that  the  mis- 
take resulted  from  the  fault  of  the  company,  and 
the  court  will  not  consider  the  possibility,  in  the 
absence  of  evidence  on  the  point,  that  it  may  have 


1  United  States  Tel.  Co.  v.  Wenger,  55  Pa.  St.  262;  s.  c,  93  Am.  Dec. 
751. 

2  Gantt,  Ark.  Dig.  §  5721. 

3  Little  Rock,  etc.  Tel.  Co.  v.  Davis,  41  Ark.  79. 

4  Bartlett  v.  Western  Union  Tel.  Co.,  62  Me.  209 ;  s.  c,  16  Am.  Rep.  437 ; 
Turner  v.HawkeyeTel.  Co.,  41  Iowa,  458;  s.  C.,20Am.  Rep.  605;  Ritten- 
house  v.  Independent  Line  of  Telegraphs,  1  Daly  (N.  Y.),  475;  s.  c,  af- 
firmed, 44  N.  Y.  263;  s.  C.,4  Am.  Rep.  673;  Tyler  v.  Western  Union  Tel. 
Co.,  60  111.  421 ;  s.  c,  14  Am.  Rep.  3S;  Telegraph  Co.  v.  Griswold,  37  Ohio 
St.  301;  Pinckney  v.  Telegraph  Co.,  19  S.  C,  71;  Pope  v.  West- 
ern Union  Tel  Co.,  9  Bradvv.  (111.)  283.  See  also  New  York,  etc. 
Tel.  Co.  v.  Dryburg,  35  Pa.  St.  298;  Brown  v.  Lake  Erie  Tel.  Co.,1  Am. 
Law  Reg.  685;  Stevenson  v.  Montreal  Tel.  Co,,  16  Up.  Canada  Q.  B. 
530;  De  Rutte  v.  New  York,  etc.  Tel.  Co.,  1  Daly  (N.  Y.),  547.  Com- 
pare Washington,  etc.  Tel.  Co.  v.  Hobson,  15  Gratt.  (Va.)  122;  West- 
ern Union  Tel.  Co.  v.  Short,  53  Ark.  434;  s.  c.,9  L.  R.  A.  744;  9  Rail. 
&  Corp.  L.  J.  Ill;  14  S.  W.  Rep.  649;  Western  Union  Tel.  Co.  v.  Carew, 
15  Mich.  525;  s.  C,  2  Thomp.  Neg.  828. 


282  NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

resulted  from  causes  beyond  the  control  of  the  com- 
pany.1 

§  277.  How  in  Cases  where  there  is  a  Stipula- 
tion against  Liability  unless"  the  Message  is  Re- 
peated.— There  is  no  difficulty  at  all  with  this  ques- 
tion until  we  reach  a  class  of  cases  already  consid- 
ered, where  there  is,  in  the  message  blank,  a  stipula- 
tion against  liability  on  the  part  of  the  company, 
unless  the  message  is  repeated  at  extra  expense  to 
the  sender.  Here,  as  already  seen,2  some  of  the 
courts  take  the  distinction  that,  in  such  cases,  the 
stipulation  operates  to  shift  the  burden  of  proof,  and 
to  cast  upon  the  plaintiff  the  onus  of  showing  neg- 
ligence by  other  evidence  of  negligence  or  want  of 
good  faith  than  that  of  the  undertaking  and  the  de- 
fault in  its  performance.3 

§  278.  Incongruity  of  these  Holdings  Pointed 
Out. — These  decisions  involve  the  solecism  that, 
while  they  admit  that  the  company  cannot  by  con- 
tract exonerate  itself  from  liability  for  negligence, 
yet  it  can  contract  with  the  sender  of  the  message, 
that  he  shall  not  be  allowed  to  prove  such  negli- 
gence by  the  legal  evidence  which  is  alone  available 
in  most  cases  of  this  kind;  it  cannot  buy  an  exemp- 
tion from  the  consequences  of  its  negligence,  but  it 
can  buy  the  plaintiff's  right  to  prove  the  negligence.4 


1  Ayer  v.  Western  Union  Tel.  Co.,  79  Me.  493;  s.  c.,1  Am.  St.  Rep.  353. 

2  Ante,  §  221. 

3  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433;  s.  c,  1  Am.  Rep. 
285;  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232;  s.  c,  96  Am. 
Dec.  519;  Becker  v.  Western  Union  Tel.  Co.  11  Neb.  87;  s.  c,  38  Am. 
Rep.  356;  White  v.  Western  Union  Tel.  Co.,  14  Fed.  Rep.  710;  Aiken  v. 
Western  Union  Tel.  Co.,  69  Iowa,  31. 

*  Thus,  according  to  the  doctrine  of  the  leading  case  of  Sweetland  v. 
Illinois,  etc.  Tel.  Co.,  27  Iowa,  433;  s.  c,  1  Am.  Rep.  285,  the  telegraph 
company  cannot  contract  away  its  obligation  to  use  ordinary  care,  but 


EVIDENCE  OF  NEGLIGENCE.  283 

It  is  creditable  to  American  jurisprudence,  that  a 
doctrine  at  once  so  absurd  and  unjust  has  not  met 
with  universal  acceptance.  It  has  been  distinctly 
repudiated  by  the  Supreme  Court  of  Ohio,  in  the 
following  language,  applicable  to  cases  where  there 
was  a  stipulation  against  liability,  unless  the  mes- 
sage should  be  repeated  :  "  The  failure  of  the  tele- 
graph company  to  transmit  and  deliver  the  message 
in  the  form  or  language  in  which  it  is  received,  is 
prima  facie  negligence  for  which  the  company  is 
liable;  to  exonerate  itself  from  the  liability  thus 
presumptively  arising,  it  must  show  that  the  mis- 
take was  not  attributable  to  its  fault  or  negligence. 
This  rule  is  not  only  sustained  upon  sound  reason, 
but  is  well  sustained  by  well  considered  cases."1 

§  279.  A  Corresponding-  Divergence  of  Opinion 
in  the  Case  of  Common  Carriers.— There  is  a  corre- 
sponding divergence  of  judicial  opinion  in  respect  of 
the  burden  of  proof  in  an  action  against  a  common 
carrier  where  there  is  a  stipulation  in  the  contract 
of  carriage  against  liability,  or  against  liability  be- 
yond a  certain  sum,  in  the  case  of  loss  or  damage 
happening  through  a  named  peril.  Here,  then,  is 
a  collection  of  cases  holding  that,  while  the  initial 
burden  of  proof  is  sustained  by  evidence  of  deliv- 
ery to  the  carrier  and  of  non-deli ver}^  by  him  after 
the  lapse  of  a  reasonable  time,  or  of  delivery  to  him 
in  good  condition  and  of  re-delivery  by  him  in  a 
damaged  condition,  so  as  to  cast  upon  him  the 
burden  of  explaining  the  non-delivery  or  the  dam- 
it  can  contract  away  from  the  plaintiff  his  right  to  prove  the  want  of 
ordinary  care  by  the  customary  evidence  of  the  assumption  of  the  un- 
dertaking and  default  in  its  performance. 

1  Telegraph  Co.  v.  Griswold,  37  Ohio,  St.  301,  313  per  Boynton,  C.  J.; 
s.  c.J  41  Am.  Rep.  500.  So  in  Tennessee.  Marr  v.  Western  Union  Tel. 
<  <»..  85  Tenn.  529. 


284         NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

age,  in  a  manner  consistent  with  his  innocence,1  yet 
when  the  carrier  assumes  this  burden,  and  presents 
evidence  which,  according  to  the  usual  formula  of 
judicial  deliverances,  "brings  the  case  within  the 
excepted  peril,"  that  is,  shows  that  the  peril  ex- 
cepted by  the  contract  was  present  and  operating 
as  an  efficient  cause  of  the  loss  or  damage,  the  burden 
of  proof  then  shifts  upon  the  plaintiff  to  prove  that, 
notwithstanding  the  presence  of  the  excepted  peril 
and  its  operation  as  an  efficient  cause  in  producing 
the  loss  or  damage,  the  carrier  was  guilty  of  negli- 
gence or  fault.2  The  other  conception  is  that  it  is 
not  enough  for  the  carrier  to  show  that,  at  the  time 
of  the  happening  of  the  loss  or  damage,  the  ex- 
cepted peril  was  present  and  operating  to  produce 
it,  but  that  he  must  also  show  that  he  and  his  serv- 
ants were  not  guilty  of  negligence  or  fault  in  the 
premises — in  other  words,  that  the  excepted  peril 
was  the  sole  cause  of  the  damage.3 

1  2  Thomp.  Tr.  §  1850,  and  cases  collected  on  page  1345. 

2  Clark  v.  Barnwell,  12  How.  (U.  S.)  272;  Spyer  v.  The  Mary  Belle 
Roberts,  2  Sawy.  (U.  S.)  1;  Hunt  v.  The  Cleveland,  G  McLean  (U.  S.), 
76,  78;  Wertheimer  v.  Pennsylvania  R.  Co.,  17  Blatchf.  (U.  S.)  421;  The 
Neptune,  6  Blatchf.  (U.  S.)  194;  Kelham  v.  The  Kensington,  24  La.  An. 
100 ;  Kirk  v.  Folson,  23  La.  An.  584 ;  Price  v.  Ship  Uriel,  10  La.  An.  413 ; 
Colton  v.  Cleveland,  etc.  R.  Co.,  67  Pa.  St.  211;  Patterson  v.  Clyde,  67 
Pa.  St.  500,  506;  Little  Rock,  etc.  R.  Co.  v.  Corcoran,  40  Ark.  375;  Lit- 
tle Rock,  etc.  R.  Co.  v.  Talbot,  39  Ark.  523,  530;  Little  Rock,  etc.  R.  Co. 
v.  Harper,  44  Ark.  208;  Mitchell  v.  United  States  Exp.  Co.,  46  Iowa, 
214;  Whitworth  v.  Erie  R.  Co.,  87  N.  Y.  413,  419;  Lamb  v.  Camden,  etc. 
R.  Co.,  46 N.  Y.  271  (two  of  the  rive  judges  dissenting);  Farnham  v. 
Camden,  etc.  R.  Co.,  55  Pa.  St.  53 ;  Read  v.  St.  Louis,  etc.  R.  Co.,  60  Mo. 
199;  Davis  v.  Wabash,  etc.  R.  Co.,  89  Mo..  340,  352  (reversing  s.  c,  13 
Mo.  App.  449) . 

3  Swindler  v.  Hilliard,  2  Rich.  L.  (S.  C.)  286 ;  Baker  v.  Brinson,  9  Rich. 
L.  (S.C.)  201;  Singleton  v.  Hilliard,  1  Strobh.  L.  (S.  C.)  203;  United 
States  Exp.  Co.  v.  Backmann,  28  Ohio  St.  144;  Union  Exp.  Co.  v.  Gra- 
ham, 26  Ohio  St.  595 ;  Berry  v.  Cooper,  28  Ga.  543 ;  Davidson  v.  Graham , 
2  Ohio  St.  131, 141;  Graham  v.  Davis,  4  Ohio  St.  362;  Whitesides  v.  Rus- 
sell, 8  Watts  &  S.  (Pa.)  44;  Levering  v.  Union  Transp.  Co.,  42  Mo.  88, 


EVIDENCE  OF  NEGLIGENCE.  285 

§  280.  What  Circumstances  Afford  Evidence  of 
"Gross  Negligence." — Where  the  conceptions  first 
alluded  to  prevail,1  it  is  well  concluded  that  the 
failure  of  a  telegraph  company  to  employ  careful 
and  skillful  operators  is  gross  negligence.2  In  another 
case  it  was  said,  where  the  message  as  delivered  to 
the  person  addressed  contained  three  substantial 
deviations  from  the  message  as  delivered  to  the  com- 
pany for  transmission,  that  the  mere  production  of 
such  a  "mutilated  message"  would  be  sufficient  to 
establish  the  gross  carelessness  of  the  defendant,  and 
would  cast  the  burden  of  proof  upon  the  defendant 
to  excuse  or  explain  the  mistakes.3  In  another  case, 
a  message  was  received  by  a  telegraph  company  to 
be  sent  to  plaintiff's  attorney  at  N.,  and  the  agent 
at  the  transmitting  office  informed  the  agent  at  N. 
of  the  number  of  words  contained  in  the  message, 
and,  having  sent  the  message,  received  from  the 
agent  at  N.  the  signal  indicating  that  it  had  been 
properly  received,  and  that  it  contained  the  number 
of  words  indicated.  In  an  action  for  negligent  de- 
livery, the  agent  at  N.  admitted  that  the  word  "six" 

95,96  (overruled,  it  seems,  by  Read  v.  St.  Louis,  etc.  R.  Co.,  GO  Mo. 
199)  ;  Chicago,  etc.  R.  Co.  v.  Moss,  60  Miss.  1003;  s.  c,  45  Am.  Rep. 
428;  Chicago,  etc.  R.  Co.  v.  Abels,  60  Miss.  1017;  Brown  v.  Adams  Exp. 
Co.,  15  W.  Va.  812,  818;  Hays  v.  Kennedy,  41  Pa.  St.  378, 384;  Humph- 
reys v.  Reed,  6  Whart.  (Pa.)  435,  444  (overruled,  it  seems,  by  Patterson 
v.  Clyde,  67  Pa.  St.  500,  506,  and  Farnham  v.  Camden,  etc.  R.  Co.,  55 
Pa.  St.  53);  South,  etc.  R.  Co.  v.  Henlein,  52  Ala.  606,612;  Read  v. 
Spaulding,  30  X.  Y.  630,  645;  Michaels  v.  New  York,  etc.  R.  Co.,  30  N. 
Y.  564,  578  (overruled  by  Whitworth  v.  Erie  R.  Co.,  87  N.  Y.  413,  419, 
and  Lamb  v.  Camden,  etc.  R.  Co.,  46  N.  Y.  271).  The  sources  of  this 
divergence  of  opinion  and  the  inconsistency  of  the  courts  in  respect  of 
it  are  treated  in  2  Thomp.  Tr.  Sec.  1851,  et  seq. 

1  Ante,  §  279. 

2  Pegram  v.  Western  Union  Tel.  Co.,  97  N.  C.  57;  s.  c,  2   S.  E.  Rep. 
256. 

8  Western  Union  Tel.  Co.  v.  Crall,  38  Kan.  679;  8.  c,  5  Am.  St.  Rep. 
795. 


286  NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

had  been  omitted  before  the  words  "hundred  and 
sixty-three"  and  that  the  word  "answer"  was  drop- 
ped, but  testified  that  the  atmospheric  conditions 
at  N.  were  not  favorable  when  the  message  was  re- 
ceived. It  was  held,  that  this  evidence  showed 
gross  negligence  on  the  part  of  the  company.1 

§  281.  Evidentiary  Circumstances  Rebutting  this 
Prima  Facie  Case. — Where  a  night  dispatch  was  in 
the  course  of  transmission,  and  had  been  received 
by  a  repeating  office,  and  hung  upon  the  proper  hook 
to  be  forwarded  to  the  office  by  which  it  was  to  be 
delivered  in  the  morning,  and  it  appeared  that  it 
could  not  be  sooner  forwarded  by  reason  of  there 
being  no  operator  at  that  office  to  receive  it  until 
morning,  and  the  contract  on  the  night  message 
blank  provided  that  the  company  should  not  be 
obliged  to  deliver  it  earlier  than  the  morning  of  the 
next  ensuing  business  day,  and  a  fire  broke  out  in 
the  operating  room  where  the  message  was  hung, 
and  before  it  could  be  rescued  the  message  was  de- 
stroyed, which  fire,  as  the  evidence  showed,  was 
due  to  atmospheric  conditions  and  influences  over 
which  the  telegraph  company  had  no  control,  and 
not  to  any  fault  or  negligence  of  the  company  or  its 
employees,  nor  to  any  imperfection  in  the  chemicals, 
metals  or  machinery  used  by  it,  it  was  held  that 
the  prima  facie  case  of  negligence,  which  was  raised 
by  the  proof  of  delivery  of  the  message  to  the  de- 
fendant and  its  non-delivery  of  the  same  to  the  per- 
son addressed,  was  rebutted  ;2  that  is,  that  this  col- 


1  Western  Union  Tel.  Co.  v.  Goodbar  (Miss.),  7  South.  Rep.  214. 

2  Fowler  v.  Western  Union  Tel.  Co.,  80  Me.  381 ;  s.  c,  6  Am.  St.  Rep. 
211,  217;  15  Atl.  Rep.  29;  38  Alb.  L.  J.  276;  16  Wash.  L.  Rep.  591;  4 
Rail.  &  Corp.  L.  J.  346. 


EVIDENCE  OF  NEGLIGENCE.  287 

lection  of  facts,  if  admitted  or  established,  exoner- 
ated the  telegraph  company  as  matter  of  law. 

§  282.  Burden  as  to  Free  Delivery  Limits. — In 
an  action  for  failure  to  deliver  a  message  within  a 
reasonable  time,  where  the  defense  is  that  the  per- 
son to  whom  it  was  addressed  lived  outside  of  the 
free  delivery  limits,  and  that  the  plaintiff  (the  sender) 
failed  to  comply  with  the  regulation  of  the  company 
requiring  a  deposit  to  pay  for  delivery  in  such  case, 
the  burden  is  on  the  plaintiff  to  prove  that  such 
person  lived  within  the  limits.1 

1  Western  Union  Tel.  Co.  v.  Henderson,  89  Ala.  510;  S.  c,  30  Am.  & 
Eng.  Corp.  Cas.  615;  7  South.  Rep.  419. 


288  NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 


Article   II.— IN   CASES   OF   NON-DELIVERY. 

Section. 

286.  Must  Make  what  Efforts  to  Deliver  Message. 

287.  Diligence  in  Delivering  whether  a  Question  of  Law  or  of  Fact. 

288.  Cases  where  Ruled  as  a  Question  of  Law. 

289.  Delivery  to  Other  Person  than  the  Addressee. 

290.  Where  the  Message  is  Addressed  to  One  Person  in  the  Care  of 

Another. 

291.  Plaintiff  not  Bound  to  Show  that  the  Addressee  was  at  His  Of- 

fice Ready  to  Receive  the  Message. 

292.  What  Evidence  Relevant  on  this  Question. 

§  286.  Must  Make  what  Efforts  to  Deliver  the 
Message.  —  The  company  must  make  reasonable 
efforts  to  find  the  person  addressed  and  to  deliver  the 
message  to  him.1  Recurring  to  a  principle  already 
discussed,2  we  may  conclude  without  hesitation,  that 
the  negligence  of  a  telegraph  company  in  failing  to 
deliver  a  message  renders  it  liable  for  such  damage 
as  is  the  direct  and  necessary  result  of  such  failure, 
without  regard  to  the  degree  of  such  negligence.3 

§  287.  Diligence  in  Delivering-  Whether  a  Ques- 
tion of  Law  or  Fact. — Whether  such  reasonable  efforts 
have  been  made,  in  a  given  case,  will  ordinarily  be  a 

1  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  s.  c,  10  Am.  St. 
Rep.  772;  Pope  v.  Western  Union  Tel.  Co.,  9  Bradw.  (111.)  283. 

2  Ante,  §§  273,  274. 

3  Western  Union  Tel.  Co.  v.  Broesche,  72  Tex.  654;  s.  c,  10  S.  W. 
Rep.  734;  Gulf,  etc.  R.  Co.  v.  Wilson,  69  Tex.  739;  s.  c,  7  S.  W. 
Rep.  653. 


IN    CASES    OF    NON-DELIVERY.  289 

question  of  fact  for  a  jury.  Such  will  be  the  case 
where  its  solution  depends  upon  a  variety  of  cir- 
cumstances, or  where  the  state  of  the  evidence  is 
such  that  fair-minded  men  might  differ  as  to  the 
conclusion  to  be  drawn  from  it.  But  many  cases 
may  arise  where  the  question,  one  way  or  the  other, 
will  be  so  plain  that  the  judge  may  resolve  it  as  a 
question  of  law,  instructing  the  jury  hypothetically 
and  leaving  them  to  resolve  any  disputed  question 
of  fact.  Under  the  strict  theory  concerning  the  in- 
dependence of  juries  which  prevails  in  Texas,  it 
seems  that  the  question  is  always  one  for  the  jury  j1 
but  this  cannot  be  affirmed  as  a  general  proposition 
of  American  jurisprudence.2  It  is  therefore  erro- 
neous, in  the  view  of  that  court — and  the  view  is 
probably  a  sound  one — for  the  court  to  decide  this 
question  by  instructing  the  jury  "that  if  a  party 
has  a  known  place  of  residence  and  a  known  place 
of  business  in  a  city,  it  is  no  part  of  the  defendant's 
duty  to  hunt  said  party  up  on  the  streets  of  the  city, 
and  the  failure  of  the  defendant's  messenger  to  hunt 
the  party  on  the  streets  is  no'  evidence  of  negligence 
on  the  part  of  the  defendant."  s  Nor  can  the  court 
declare  to  the  jury,  as  matter  of  law,  that  going  twice 
to  the  office  of  the  addressee,  a  practicing  physician  f 
excuses  the  company  for  liability  for  damages,  where 
his  residence  is  near  by,  and  he  is  well  known  in  the 
town,  and  the  messenger  knows  him  and  knows 
where  his  residence  is,  but  does  not  go  there  to  seek 
him,  in  a  case  where,  although  he  had  been  in  the 

1  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  S.  c,  10  Am.  St. 
Rep.  772. 

2  2  Thomp.  Tr.  §  1530,  et  seq. 

3  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  s.  c,  10  Am.  St. 
Rep.  772. 

(ID) 


290         NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

country,  he  had  returned  before  the  message  was 
received  at  the  telegraph  office.1  On  similar  grounds, 
an  instruction  that  the  company  is  required'  to 
deliver  a  message  only  at  the  office  of  the  person  ad- 
dressed has  been  held  erroneous.'2 

§  288.  Cases  where  Ruled  as  a  Question  of  Law. — 
On  the  other  hand,  it  has  been  ruled  that,  where  a 
telegraph  company  pursues  the  customaiy  and  prac- 
tical method  as  to  the  transmission  and  delivery  of 
a  message,  and  leaves  it  according  to  the  address, 
upon  being  informed  that  the  addressee  lives  there, 
it  is  not,  as  matter  of  law,  guilty  of  negligence  in  so 
doing,  although  it  turns  out  that  the  addressee  does 
not  live  there,  but  lives  at  the  same  number  on  a 
street  to  which  the  same  name  as  well  applies.3 
Obviously,  the  company  cannot  be  heard  to  plead 
the  insufficiency  of  its  own  service  as  an  excuse. 
Accordingly,  the  fact  that  the  business  of  a  particu- 
lar telegraph  office  is  insufficient  to  justify  the  em- 
ployment of  a  separate  operator  or  messenger  to 
deliver  messages,  does  not  excuse  the  company  from 
liability  for  failure  to  deliver  from  that  office  a  mes- 
sage which  it  has  elsewhere  received  for  transmis- 
sion.4 In  another  case  where  the  question  was  ruled 
as  a  question  of  law,  the  action  was  against  a  tele- 
graph company  under  a  statute/"  by  the  addressee 
of  a  message  to  recover  the  statutory  penalty  for 
failing  to  deliver  it,  and  it  appeared  that  two  efforts 
were  made  by  the  company's  manager  to  find  the 

1  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507. 

2  Pope  v.  Western  Union  Tel.  Co.,  9  Bradw.  (111.)  2S3. 

3  Deslottes  v.  Baltimore  &  O.  Tel.  Co.,  40  La.  An.  183;  s.  C,  3  South . 
Rep.  566. 

4  Western  Union  Tel.  Co.  v.  Henderson,  S9  Ala.  510;  s.  c,  30  Am.  & 
Eng.  Corp.  Cas.  615;  7  South.  Rep.  419. 

5  Rev.  St.  Ind.  §4177. 


IN    CASES    OF    NON-DELIVERY.  291 

plaintiff,  but  without  success  ;  that  the  sender  of  the 
message  was  then  interrogated,  but  failed  to  give  a 
better  address  ;  but  that,  in  fact,  the  addressee  had 
resided  for  six  years  in  the  same  house  within  a  mile 
of  the  defendant's  office.  Here,  it  was  held  that  the 
search  was  not  sufficient  to  relieve  defendant  from 
liability,  and  that  the  plaintiff  could  not  be  bound 
by  the  negligence  of  the  sender  of  the  message,  in  the 
absence  of  anything  to  show  that  he  was  the  plaint- 
iff's agent.1  Again,  where  a  telegraph  company,  to 
whom  a  man  offered  to  pay  in  advance  for  the  de- 
livery to  him,  at  his  residence,  of  a  message  which 
he  expected  would  come  addressed  to  him  by  an 
assumed  name,  refused  to  accept  the  payment,  but 
entered  his  name  in  its  register  as  that  of  a  person 
entitled  to  receive  messages  so  addressed,  and  prom- 
ised to  deliver  such  message  when  received,  it 
was  held  liable  for  failure  so  to  do.2 

§  289.  Delivery  to  Other  Person  than  the  Ad- 
dressee.— Another  court,  seemingly  ruling  the  ques- 
tion as  one  of  law,  has  held  that,  if  a  telegraph  com- 
pany, failing  to  learn  the  whereabouts  of  one  to 
whom  a  message  is  sent,  delivers  it  to  his  wife,  and 
informs  the  sender,  it  perforins  it  duty.3  Another 
court,  evidently  proceeding  on  the  same  conception, 
has  held  that  there  is  an  implied  authority  on  the 
part  of  a  hotel  clerk  to  receive  a  dispatch  for  a  guest, 
and  that  if  the  clerk  is  negligent  in  delivering  it, 
the  telegraph  company  is  not  at  fault/     But  where 

1  Western  Union  Tel.  Co.  v.  McKibben,  114  Ind.  511;  s.  C,  14  N.  E. 
Rep.  894. 

-'  Milliken  v.  Western  Union  Tel.  Co.,  110  N.  Y.  493;  s.  c,  1  L.  It.  A. 
281 ;  18  N.  E.  Rep.  251 ;  IS  N".  Y.  St.  Rep  32S;  27  Cent.  L.  J.  577. 

'Given  v.  Western  Union  Tel.  Co.,  24  Fed.  Rep.  119. 

4  Western  Union  Tel.  Co.  v.  Trissal,  98  Ind.  566. 


292  NEGLIGENCE    BY    TELEGRAPH    COM  PA  Nil.S. 

a  telegraph  message,  addressed  to  "  T.  W.  Pearsall 
&  Co.,"  was  delivered  at  the  office  of  that  firm  in 
an  envelope  addressed  "  T.  W.  Pearsall,"  this  was 
held  prima  facie  evidence  of  negligence.1 

§  290.  Where  the  Message  is  Addressed  to  one 
Person  in  the  Care  Another. — But  it  has  been  held 
that  where  the  message  is  addressed  to  one  person 
in  the  care  of  another,  and  the  messenger  of  the 
company  tenders  it  to  the  person  in  whose  care  it  is 
addressed,  and  he  refuses  to  receive  it,  the  com- 
pany is  not  bound  to  look  further  for  the  purpose 
of  finding  the  orginal  addressee  and  delivering  it  to 
him.2 

§  291.  Plaintiff  not  Bound  to  Show  that  the  Ad- 
dressee was  at  his  Office  Ready  to  Receive  the  Message. 
— As  the  company  does  not,  as  a  matter  of  law,  excuse 
itself  for  a  non-delivery,  by  merely  inquiring  at  the 
office  of  the  addressee,  it  follows  that  the  plaintiff  is 
not  bound  to  prove  that  the  person  to  whom  the  mes- 
sage was  addressed  was  at  his  office  ready  to  receive 
it.  If  he  was  not  at  his  office,  so  that  it  could  be  de- 
livered to  him,  this  is  matter  of  defense  to  be  shown 
by  the  company.3 

§  292.  What  Evidence  Relevant  on  this  Question. 
— Any  statements  made  by  persons  to  the  mes- 
senger to  whom  the  dispatch  is  delivered  at  its 
destination,  for  the  purpose  of  finding  and  deliver- 
ing it  to  the  addressee,  may  apply,  as  to  the  where- 
abouts of  the  latter,  have  been  held  admissible  in 
evidence,  as   bearing  on  the  question  of  negligence 

1  Pearsall  v.  Western  Union  Tel.  Co.,  44  Hun  (X.  Y.),  532;  s.C,  9  X. 
Y.  St.  Rep.  132. 

2  Western   Union  Tel.  Co.   v.  Young,   77  Tex.  245;  S.  C,  13   S.  W. 
Rep.  985. 

3  Pope  v.  Western  Union  Tel.  Co.,  9  Brachv.  (111.)  283. 


IN    CASES    OF    NON-DELIVERY.  293 

in  not  finding  him.1  Where  a  telegraph  company 
sought  to  excuse  non-delivery  on  the  ground  that 
the  receiver  was  an  obscure  person  whom  the  mes- 
senger could  not  find,  specimens  of  printed  cards 
and  letter  heads,  which  he  had  used  in  his  business 
as  grocer,  were  regarded  as  pertinent  to  the  issue, 
and  admissible,  especially  after  he  had  testified, 
without  objection,  that  he  so  used  them.2 

1  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  S.  C,  10  Am.  St. 
Eep.  772. 

2  Gulf,  etc.  R.  Co.  v.  Miller  (Tex.),  7  S.  W.  Rep.  653. 


294         NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 


Article  III.— IN   CASES  OF    DELAY. 

SRCTION. 

295.  General  Yievv  as  to  Liability  for  Delay. 

296.  Rule  as  to  Urgent  Messages. 

297.  What  Disclosures  of  Urgency  Sufficient. 
29S.  What  Delay  Evidence  of  Negligence. 

299.  Reception  at  Small  Station :     Transmission  through  Repeating 

Offices. 

300.  Question  how  Affected  by  the  Hours  of   Closing  Company's 

Office. 

301.  What  Excuses  Insufficient. 

302.  Whether  Plaintiff  Injured  by  the  Delay  a  Question  for  the  Jury. 

303.  No  Recovery  of  Damages  Unless  Delay  Prejudicial. 

304.  Delay  by  Changing  Route  in  Consequence  of  Bad  Weather. 

§  295.      General   View   as   to   Liability  for  Delay. — 

It  is  generally  enacted  by  the  statutes  previously 
referred  to,  that  each  message  shall  be  forwarded  in 
its  turn  as  soon  as  received.1  This  would,  doubtless, 
be  held  to  be  a  proper  requirement,  in  the  absence 
of  statutory  provisions.2  The  fact  that  these  com- 
panies act  in  a  public  Capacity  is  repugnant  to  the 
idea  that  any  preference  can  be  allowed  in  the  trans- 
mission of  dispatches  ;  though  it  may  be  inferred 
from  what  follows  in  this  chapter,  that,  in  the  ab- 
sence of  a  statutory  prohibition,  the  company  would 
be  justified  in  forwarding,  ahead  of  their  turn,  dis- 

1  Ante,  §  158. 

2  Davis  v.  Western  Union  Tel.  Co.,  1  Cin.  Superior  Ct.  100,  and  cases 
post. 


IN    CASES    OF    DELAY.  295 

patches  which,  on  their  face,  or  from  external  in- 
formation, appear  to  be  very  urgent.  Under  any 
theory,  a  prompt  delivery  is  of  the  essence  of  the 
contract,  and  a  failure  in  that  respect  is  such  a 
breach  as  will  authorize  the  recovery  of  at  least  the 
consideration  paid; '  but  whether  it  will  authorize 
the  recovery  of  more,  depends  upon  a  variety  of 
circumstances  elsewhere  considered.2  Here,  as  else- 
where, except  in  actions  for  a  statutory  penalty,  the 
plaintiff  must  show  both  negligence  or  willful  mis- 
conduct and  damages:  where  the  result  to  him 
would  have  been  the  same  if  the  delay  had  not 
supervened,  he  cannot  recover  more  than  the  cost 
of  sending  the  message.3 

§  296.  Rule  as  to  Urgent  Messages. — Laying  out 
of  view  the  question  to  what  extent,  if  any,  the 
company  will  be  justified  in  forwarding  out  of  their 
turn  messages  of  peculiar  urgency,  it  is  under  the 
undoubted  obligation  to  forward  all  dispatches  with 
reasonable  diligence,  and  this  would  ordinarily 
imply  greater  promptness  in  the  case  of  messages 
known  to  be  urgent  than  in  the  case  of  others. 
From  this,  the  conclusion  reasonably  follows  that  if 
the  sender  of  a  message  of  great  or  peculiar  im- 
portance would  hold  the  company  responsible  for 
failing  to  deliver  it  more  promptly  than  would  suf- 
fice in   other  cases,  he  must  so  word  the  message 


1  Western  Union  Tel.  Co.  v.  Adams,  75  Tex.  531;  s.  c,  6  L.  K.  A. 
844;  12  S.  W.  Rep.  857. 

2  Ante,  §  158,  et  seq. 

3  Thus,  it  has  been  held  that,  although  there  may  have  been  negli- 
gence on  the  part  of  the  servants  of  a  telegraph  company  in  delivering 
a  message  calling  a  physician  to  attend  a  patient,  yet,  if  it  could  not 
have  been  delivered  in  time  for  him  to  render  any  assistance,  no  dam- 
ages can  be  recovered.  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507  ; 
8.  c,  1  L.  R.  A.  728;   0  S.  AV.  Rep.  598. 


296         NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

that  its  importance  will  be  obvious  to  the  operator, 
or  otherwise  give  notice  of  its  important  character.1 
Such  information  being  given,  the  company  will  be 
liable  for  all  damages  which  are  the  proximate  re- 
sult of  a  failure  seasonably  and  properly  to  transmit 
the  message.2  Here,  as  in  most  other  cases,  the 
diligence  which  fills  the  measure  of  what  the  law 
denominates  reasonable  care,  is  proportioned  to  the 
urgency  of  the  occasion.  It  cannot,  therefore,  be 
governed  by  general  rules,  but,  on  the  contrary, 
general  rules  must  in  some  cases  yield  to  it.  It  is, 
therefore,  clear  that  such  a  company  cannot  excuse 
its  failure  to  exercise  such  diligence  by  showing 
that  the  particular  dispatch  was  transmitted  in  ac- 
cordance with  its  own  rules,  since  it  would  be 
absurd  to  allow  a  corporation  to  make  rules  for  its 
own  conduct  that  would  excuse  its  own  negligence. 
The  by-laws  and  other  rules  of  a  corporation  are 
void  unless  they  are  reasonable,  and  such  a  rule 
would  be  unreasonable.3  On  the  other  hand,  the 
fact  that  the  message  is  not  so  worded  as  to  apprise 
the  agent  of  the  company  of  its  urgenc}T  does  not 

1  Belun  v.  Western  Union  Tel.  Co.,  7  Reporter,  710;  s.  c,  8  Cent.  L. 
J.  445:  11  Ch.  Leg.  X.  276;  Candee  v.  Western  Union  Tel.  Co.,  34  Wis. 
471;  United  States  Tel.  Co.  v.  Gildersleve,  29  Md.  232;  Baldwin  v. 
United  States  Tel.  Co.,  45  N.  Y.  744,  749. 

2  Sprague  v.  Western  Union  Tel.  Co.,  6  Daly  (X.  Y.),  209;  United 
States  Tel.  Co.  v.  Wenger,  55  Pa.  St.  262;  Bryant  v.  American  Tel.  Co., 
1  Daly  (X.  Y.).  575;  First  Xational  Bank  v.  Western  Union  Tel.  Co.,  30 
Ohio  St.  555;  Brown  v.  Western  Union  Tel.  Co.  (Utah),  21  Pac.  Rep. 
988;  Western  Union  Tel.  Co.  v.  Sheffield,  71  Tex.  570;  s.  c,  10  S.  W. 
Rep.  752;  Western  Union  Tel.  Co.  v.  Valentine,  18  111.  App.  57. 

3  Two  cases  hold  that,  when  a  dispatch  received  by  a  telegraph  com- 
pany for  transmission  demonstrates  upon  its  face  extreme  urgency  that 
it  shall  be  delivered  immediately,  the  degree  of  diligence  to  be  exercised 
is  in  proportion  to  the  exigencies  of  the  case,  as  shown  by  the  telegram, 
regardless  of  any  rules  of  the  company.  Brown  v.  Western  Union  Tel. 
Co.  (Utah),  21  Pac.  Rep.  988;  Pegram  v.  Western  Union  Tel.  Co.,  97 
N.  C.  57;  S.  c,  2  S.  E.  Rep.  256. 


IN    CASES    OF    DELAY.  297 

relieve  the  company  from  liability  for  a  negligent 
delay  in  delivering  it,  provided  the  delay  were  such 
as  would  be  evidence  of  negligence  in  the  case  of  a 
message  not  specially  important. 

§  297.  What  Disclosures  of  Urgency  Sufficient. — 
It  is  a  rule  of  law,  applicable  in  many  cases,  that  a 
party  is  chargeable  with  knowledge  of  a  fact  where 
he  has  such  notice  as  would  put  a  reasonable  or 
prudent  man  on  inquiry.1  On  a  similar  principle, 
in  order  to  bring  a  case  within  the  rule  we  are  con- 
sidering, the  message  need  not  disclose  its  urgency 
in  a  circumstantial  manner :  it  will  bo  sufficient  if 
it  shows  it  to  a  common  intent,  so  to  speak.  For 
instance,  a  message  summoning  a  woman  to  the  bed- 
side of  a  dying  person  need  not  disclose  on  its  face 
the  fact  that  she  is  the  mother  of  the  dying  person.2 
Nor  need  a  message  in  the  words:  "You  had  better 
come  and  attend  to  your  claim  at  once,"  give  the 
names  of  the  debtors  against  whom  the  addressee 
of  the  message  has  claims.3 

§  298.  What  Delay  Evidence  of  Negligence. — A 
delay  of  three  days  in  delivering  a  message  makes 
out  &  prima  facie  case  of  negligence  against  the  tele- 
graph company,  such  as  casts  upon  it  the  burden 
of  explaining;  and,  where  no  excuse  is  offered,  the 
court  trying  the  facts  is  justified  in  finding  that 
the  company  is  negligent.4  In  like  manner,  it  has 
been  held  that  a  delay  of  several  hours  in  transmit- 

1  Lodge  v.  Simonton,  2  Penn.  &.  W.  (Pa.)  439;  s.  C,  23  Am.  Dec.  36; 
and  note  23  Am.  Dec.  47. 

2  Western  Union  Tel.  Co.  v.  Feegles,  75  Tex.  537;  s.  c,  12  S.  W.  Rep. 
S60. 

8  Western  Union  Tel.  Co.  v.  Sheffield,  71  Tex.  570;  s.  C,  10  S.  W . 
Rep.  752. 

*  llarkness  v.  Western  Union  Tel.  Co.,  73  Iowa,  190;  s.  c.,  •">  Am.  St. 
Rep.  G72. 


L,(.^         NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

ting  a  message  requiring  only  from  five  to  fifteen 
minutes,  is  unreasonable,  and,  when  shown  in  an 
action  to  recover  a  statu tory  penalty,  places  the  bur- 
den of  explaining  it  on  defendant.1  Nor  would  the 
fact  that  one  operator  could  not  attend  to  the  mes- 
sage in  less  time  constitute  an  explanation,  as  the 
company  would  be  bound  to  emplo}^  more  opera- 
tors.2 Where  a  message  ordering  a  quantity  of  hams 
was  mislaid  by  the  company's  agent  for  seven  days, 
and  then  sent  forward,  and  the  plaintiff  acted  upon 
the  order,  this  was  held  such  gross  negligence  as 
would  cast  the  loss  upon  the  company,  although 
there  was  in  the  message  blank  a  stipulation  ex- 
empting the  company  from  liability  beyond  the 
price  of  the  message.3  Where  the  language  of  the 
message  was:  "Come  in  haste,  your  wife  is  at  the 
point  of  death,"  and  the  place  of  business  of  the 
addressee  was  well  known,  and  was  within  a  short 
distance  of  the  office  of  the  company,  and  there 
was  a  delay  of  eight  days,  whereby  he  was  prevented 
from  attending  his  wife's  funeral,  it  was  held  that 
he  was  entitled  to  maintain  an  action  for  damages.4 
On  the  other  hand,  a  dispatch  delivered  in  its  reg- 
ular order,  and  within  thirty  minutes  from  the  time 
when  received  at  the  office  of  the  city  of  delivery,  is 
seasonably  delivered.5 

§  299.  Reception  at  Small  Station — Transmission 
Through  Repeating  Offices. — But  it  has  been  well 
reasoned  that  it  would  be  unjust  to  expect  that  a 

1  Western  Union  Tel.  Co.  v.  Scircle,  103  Ind.  227. 

2  Ibid. 

sMowryv.  Western  Union  Tel.  Co.,  51   Hun   (N.Y.),126;    s.  c,  20 
N.  Y.  St.  Rep.  626;  4  N.  Y.  Supp.  666. 

*  Young  v.  Western  Union  Tel.  Co.,  107  N.  C.  370;  s.  C,  9  L.  R.  A. 
669;  42  Alb.  L.  J.  518;  11  S.  E.  Rep.  1044. 

*  Julian  v.  Western  Union  Tel.  Co.,  98  Ind.  327. 


IN    CASES    OF    DELAY.  299 

message  left  for  transmission  with  a  telegraph  com- 
pany at  a  small  station,  should  be  forwarded  and  de- 
livered at  its  destination  as  quickly  as  though  it  had 
been  left  at  a  large  office.  At  a  small  station,  it  is 
said  that  it  is  not  the  duty  of  the  company  to  keep 
more  than  one  operator,  and  if  a  message  is  left 
with  a  messenger  during  the  operator's  absence, 
and  the  message  is  forwarded  on  the  operator's  re- 
turn after  a  reasonable  absence,  the  company  is  not 
guilty  of  negligence.  Moreover,  if  the  usual  line 
of  business  between  two  points  is  through  a  repeat- 
ing office,  the  company  is  entitled  to  a  reasonable 
time  for  the  delay  on  account  of  other  business  at 
such  repeating  office.1 

§  300.  Question  how  Affected  by  the  Hours  of 
Closing-  Company's  Office. — Whether  the  company 
can  be  heard  to  offer  the  fact  that  its  office  was  closed 
as  an  excuse  for  delay,  depends  upon  the  question 
whether  it  was  reasonable  that  its  office  should  be 
closed  at  the  particular  time;  otherwise,  it  would  be 
allowed  to  urge  its  own  unreasonable  conduct  as  an 
excuse  for  its  own  negligence — in  other  words,  to 
take  advantage  of  its  own  wrong.2  It  has  been  held 
that  a  telegraph  company  is  not  excused  from 
liability  for  delay  in  delivering  a  message,  by 
the  mere  fact  that  its  office  at  the  place  of 
delivery  was  closed  at  the  time  the  message 
was  received  at  the  place  of  sending.3  But 
it  is  a  mere  judicial  assumption  to  say,  as  was 
said  in  one  case,  that  the  employees  in  a  telegraph 
office  are  not  required  to  know  the  hour  at  which 

1  Benin  v.  Western  Union  Tel.  Co.,  8  Biss.  (U.  S.)  131. 

2  Ante,  §  185. 

3  Western  Union  Tel.  Co.  v.Broesehe,  72  Tex.  G54;  s.  c,  10  S.  W.  Rep. 
734. 


300  NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

an  office  of  the  company  in  another  city  closes.1  On 
the  contrary,  it  is  an  obvious  suggestion  that,  in  any 
properly  regulated  telegraph  system,  the  offices 
would  be  classified,  and  there  would  be  a  uniform 
time  established  for  the  closing  of  those  of  each 
class,  of  which  time  every  agent  receiving  dispatches 
would  be  apprised.  It  is  probable  that  there  is  not 
a  receiving  agent  in  the  postal  telegraph  service  of 
France  or  Germany  that  does  not  know  the  hour  of 
closing  of  every  office  in  the  republic  or  empire. 
If  such  an  agent  receives  an  urgent  dispatch  after 
the  office  to  which  it  is  to  be  sent  is  closed  for  the 
da\',  and,  nevertheless,  undertakes  to  get  it  through, 
this  may  of  itself  be  evidence  of  negligence.  Where 
the  action  was  for  the  penalty  given  by  a  statute2 
for  failing  properly  to  transmit  messages  "  during 
the  usual  office  hours,"  and  it  appeared  that  the 
message  was  received  within  office  hours,  and 
promptly  transmitted  to  another  office,  where  it  was 
not  delivered  until  noon  the  next  day,  it  was  held 
that' the  company  was  not  liable,  provided  the  office 
hours  at  the  last  named  office  were  reasonable:2 

§  301 .  What  Excuses  Insufficient. — It  has  been  held 
no  excuse  for  delay  in  transmitting  a  message  that 
an  agent  at  an  intermediate  point  was  in  doubt  as 
to  its  proper  destination,  the  message  being  ad- 
dressed to  "Wallace"  instead  of  "  Wallis,"  there 
being  no  place  in  the  State  of  the  former  name,  if 
he  knew  of  the  existence  of  the  latter  town,  and 
failed  to  send  it  to  that  point.  If,  in  such  a  case, 
the  error  in  the  name  was  chargeable  to  the  agent 

1  Given  v.  Western  Union  Tel.  Co.,  24  Fed.  Rep.  119. 

2Ind.  Rev.  Stat.  1881,  §  4176. 

'  Western  Union  Tel.  Co.  v.  Harding.  103  End.  505  (Howk.  J.,  dissen- 

)  • 


IN    CASES    OF    DELAY.  301 

who  received  the  message  from  the  sender,  the 
company  would  be  liable  for  his  negligence,  and 
regardless  of  the  diligence  used  by  the  agent  at  the 
intermediate  office  to  discover  the  correct  destina- 
tion.1 

§  302.  Whether  Plaintiff  Injured  by  the  Delay  a 
Question  for  the  Jury. — Whether  the  plaintiff  was 
injured  by  the  delay,  and,  if  so,  to  what  extent,  is 
always  a  question  of  fact  for  the  jury,  but  always 
with  the  proviso  that  there  is  evidence  tending  to 
show  such  injury.  It  was  in  this  sense  that  one 
court  held  that  where  the  message  summoned  a 
physician  to  a  patient,  it  was  for  the  jury  to  deter- 
mine whether  the  patient  was  injured  by  the  delay, 
and  whether  the  result  would  have  been  different 
had  the  dispatch  been  delivered.2  Thus,  where 
the  message  contained  information  of  the  probable 
death  of  plaintiff's  wife,  and  the  onhy  means  by 
which,  if  the  dispatch  had  been  duly  delivered,  the 
plaintiff  could  have  arrived  before  her  death  was  by 
a  train  which  passed  at  a  distance  of  fifteen  miles 
from  the  point  to  which  the  message  should  have 
been  sent,  within  two  hours  and  fifteen  minutes 
after  the  earliest  time  at  which  he  could  have  re- 
ceived the  message,  it  was  for  the  jury  to  decide 
whether  he  could  have  reached  her  while  living, 
and  therefore  whether  he  was  injured  by  the  delay.3 

§  303.  No  Recovery  of  Damages  unless  Delay  Prej- 
udicial.— Unless  the  action  is  for  a  statutory  penalty,4 
there  can,  of  course,  be  no  recovery  of  damages 
unless  the  delay  is  shown  to  have  been  injurious  to 

1  Beasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Rep.  181. 

2 Brown  v.  Western  Union  Tel.  Co.  (Utah),  21  Pae.  Kep.  988. 

3  Beasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Kep.  181. 

*  Ante,  §  158,  at  seq. 


302  NEGLIGENCE    BY    TELEGRAPH    COMPANIES. 

the  plaintiff  in  a  legal  sense.  Thus,  it  has  been 
held  that  a  delay  of  six  hours,  in  delivering  a 
message  announcing  that  the  sender  would  be  there 
that  evening  to  attend  the  funeral  of  his  mother, 
did  not  entitle  him  to  recover  damages,  where  it 
appeared  that  he  could  not  have  arrived  in  any 
event  in  time  to  attend  the  funeral  unless  it  was 
postponed,  and  those  in  charge  received  the  mes- 
sage before  it  took  place,  and  did  not  see  fit  to  post- 
pone it.1  So,  where  the  action  was  for  the  failure 
to  deliver  a  message  summoning  a  physician  to 
attend  the  plaintiff's  wife,  it  was  held  that  the 
plaintiff  could  not  recover  damages,  in  the  absence 
of  evidence  tending  to  show  that  her  life  might 
have  been  saved  had  the  message  been  promptly 
delivered.2  Possibly  another  decision  may  be  refer- 
red to  the  same  principle,  where  it  was  held  that  a 
telegraph  company  is  not  liable  for  loss  resulting 
from  delay  in  the  delivery  of  a  message  relative  to 
an  advance  in  the  price  of  cotton,  when  it  appears 
that  the  message  was  the  voluntary  act  of  a  third 
party  under  no  obligation  to  send  it,  and  having  no 
connection  with  the  cotton  in  question.3 

§  304.  Delay  by  Changing-  Route  in  Consequence 
of  Bad  Weather.  —  Where  the  condition  of  the 
weather  prevented  the  company  from  sending  a 
message  by  the  usual  and  most  direct  route,  it  is  not 
chargeable  with  negligence  by  sending  the  next  best 
available  route.4 

iWestern  Union  Tel.  Co.  v.  Andrews,  7S  Tex.  305;  s.  c,  14  S.  W. 
Rep.  641. 

-Western  Union  Tel.  Co.  v.  Kendzora,  77  Tex.  257;  s.  c,  13  S.  W. 
Rep.  '.86. 

•Frazer  v.  Western  Union  Tel.  Co.,  8*1  Ala.  497;  s.  c,  4  South.  Rep. 
831. 

1  [Jeasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Rep.  181. 


RULE    IN    HADLEY    V.    BAXENDALE.  303 


CHAPTER    XI. 

DAMAGES  IN   ACTIONS   AGAINST   TELEGRAPH   COMPANIES. 

Article  I.  Rule  in  Hadley  v.  Baxendale. 

Article  II.  Proximate  and  Remote  Damages. 

Article  III.  Loss  of  Profits. 

Article  IV.  Cipher  and  Unintelligible  Dispatches. 

Article  V.  Injury  to  the  Feelings. 

Article  VI.  Miscellaneous  Holdings. 


Article    I.— RULE  IN   HADLEY    V.    BAXENDALE. 

Section. 

310.  The  Measure  of  Damages  Governed  by  General  Rules. 

311.  Rule  iu  Hadley  v.  Baxendale:     Damages  in  Contemplation  of 

the  Parties. 
31  "2.     That  Rule  as  Explained  in  a  Leading  Case  in  New  York. 

313.  Special  Circumstances  must  be  Communicated  to  the  Company. 

314.  English  Case  in  Illustration  of  the  Rule. 

315.  Agents  who  Receive  Dispatches  for  Transmission  are  Agents  to 

Receive  Such  Information. 
3K).     Conclusions  Flowing  from  these  Rules. 

§  310.  The  Measure  of  Damages  Governed  by 
General  Rules. — The  measure  of  damages,  in  actions 
against  telegraph  companies  for  failing  in  the  per- 
formance of  the  duties  which  they  undertake,  is  one 
of  the  most  difficult  of  questions  arising  with  refer- 
ence to  this  agency,  owing  to  tin-   peculiar  nature 


304        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

of  the  undertaking.  The  general  rule  is  that  a  tele- 
graph company,  receiving  a  message  for  immediate 
transmission  and  delivery,  is  bound  to  use  ordinary 
can  in  endeavoring  to  make  such  delivery  as  nearly 
immediate  as  practicable;  and,  upon  failure  to  do 
so,  will  be  liable  to  the  sender  for  such  actual  dam- 
age in  loss  of  time,  traveling  expenses,  etc.,  not  ex- 
ceeding the  amount  sued  for,  as  he  may  be  found 
to  have  sustained  in  consequence  of  the  delay  in 
delivering  of  the  message.1 

^>  311.  Rule  in  Hartley  v.  Baxenrtale  :  Damages 
in  Contemplation  of  the  Parties. — American  judicial 
authority  is  generally,  though  not  universally 
agreed,  that  the  rule  of  damages  to  be  applied  in 
such  actions  is  that  laid  down  in  the  leading 
English  case  of  Hadley  v.  Baxendale.2  In  that  cel- 
ebrated case  it  appeared  that  the  plaintiffs,  owners 
of  a  steam-mill,  broke  a  shaft,  and,  desiring  to  have 
another  made,  left  the  broken  shaft  with  the  de- 
fendant, a  carrier,  to  take  to  an  engineer  to  serve 
as  a'  model  for  a  new  one.  At  the  time  of  making 
the  contract  the  defendant's  clerk  was  informed 
that  the  mill  was  stopped,  and  that  the  plaintiffs 
desired  the  broken  shaft  to  be  sent  immediately. 
Its  delivery  was  delayed,  however,  and  the  new 
shaft  kept  back  in  consequence.  The  plaintiffs 
brought  their  action  for  a  breach  of  this  contract 
with  the  carrier,  and  they  claimed,  as  special  dam- 
ages, the  loss  of  profits  while  the  mill  was  kept  idle. 
But,  because  it  was  not  made  to  appear  that  the 
defendant  was  informed  that  the  want  of  the  shaft 
was  the  only  thing  that  was  keeping  the   mill  from 


1  Bliss  v.  Baltimore,  etc.  Tel.  Co.,  30  Mo.  App.  103. 

2  9  Exch.  341 ;  8.  C,  26  Eng.  Law  &  Eq.  398. 


RULE    IN    HADLEY    V.    BAXENDALE.  305 

operating,  it  was  held  that  he  could  not  be  made 
responsible  to  the  extent  claimed  ;  and  the  court, 
in  delivering  its  judgment,  said:  "We  think  the 
proper  rule,  in  such  a  case  as  the  present,  is  this  : 
where  two  parties  have  made  a  contract  which  one 
of  them  has  broken,  the  damages  which  the  other 
party  ought  to  receive,  in  respect  of  such  breach  of 
contract,  should  be  either  such  as  may  fairly  and 
substantially  be  considered  as  arising  naturally, 
i.  e.,  according  to  the  usual  course  of  things,  from 
such  breach  of  contract  itself,  or  such  as  may  rea- 
sonably be  supposed  to  have  been  in  the  contem- 
plation of  both  parties,  at  the  time  they  made  the 
contract,  as  the  probable  result  of  the  breach  of  it. 
Now,  if  the  special  circumstances  under  which  a 
contract  was  actually  made  were  communicated  by 
the  plaintiff  to  the  defendant,  and  thus  known  to 
both  parties,  the  damages  resulting  from  the  breach 
of  such  a  contract,  which  they  would  reasonably 
contemplate,  would  be  the  amount  of  injury  Avhich 
would  ordinarily  follow  from  a  breach  of  a  contract 
under  these  special  circumstances  so  known  and 
communicated.  But,  on  the  other  hand,  if  those 
special  circumstances  were  wholly  unknown  to  the 
party  breaking  the  contract,  he,  at  the  most,  could 
only  be  supposed  to  have  in  his  contemplation  the 
amount  of  injury  which  would  arise  generally,  and 
in  the  great  multitude  of  cases  not  affected  by  any 
special  circumstances  of  such  a  breach  of  contract. 
For,  had  the  special  circumstances  been  known,  the 
parties  might  have  expressly  provided  for  the 
breach  of  contract  by  special  terms  as  to  the  dam- 

(20) 


306        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

ages  in  that  case,  and  of  this  advantage  it  would 
he  very  unjust  to  deprive  them."  ' 

§  312.  That  Rule,  as  Explained  in  a  Leading-  Case 
in  New  York. — In  what  may,  perhaps,  he  regarded 
as  a  leading  American  case,  the  same  rule  of  dam- 
ages was  thus  laid  clown  by  Seldon,  J.:  "The  party 
injured  is  entitled  to  recover  all  his  damages,  in- 
cluding gains  prevented  as  well  as  losses  sustained, 
and  this  rule  is  subject  to  but  two  conditions:  The 
damages  must  be  such  as  ma}7  fairly  be  supposed  to 
have  entered  into  the  contemplation  of  the  parties 
when  they  made  the  contract;  that  is,  must  be 
such  as  might  naturally  be  expected  to  follow  its 
violation;  and  they  must  be  certain,  both  in  their 
nature  and  in  respect  to  the  cause  from  which  they 
proceed."2  "The  cardinal  rule,"  said  Earl,  C.  J., 
in  a  statement  of  the  rule  which  has  never  been 
surpassed,  "undoubtedly  is  that  the  one  party  shall 
recover  all  the  damages  which  has  been  occasioned 
by  the  breach  of  contract  by  the  other  party.  But 
this  rule  is  modified  in  its  application  by  two  others. 
The  damages  must  flow  directly  and  naturally  from 
the  breach  of  contract,  and  they  must  be  certain, 
both  in  their  nature  and  in  respect  to  the  cause  from 
which  they  proceed.     Under  this  latter  rule,  spec- 

1  The  following,  among  many  other  cases,  where  the  action  was 
against  telegraph  companies  for  errors  or  defaults  in  the  transmission 
of  messages,  affirm  the  leading  proposition  of  the  above  case,  that  such 
damages  are  recoverable  as  may  fairly  be  supposed  to  be  in  the  con- 
templation of  the  parties  as  likely  to  flow  from  a  breach  of  the  under- 
taking. McColl  v.  Western  Union  Tel.  Co.,  44  N.  Y.  Super.  487;  s.  c, 
7  Abb.  N.  C.  (X.  Y.)  151 ;  Candee'  v.  Western  Union  Tel.  Co.,  34  Wis. 
471;  s.  c,  17  Am.  Rep.  452;  First  Nat.  Bank  v.  Western  Union  Tel.  Co.. 
30  Ohio  St.  555;  s.  c,  27  Am.  Rep.  4S5;  Western  Union  Tel.  Co.  v. 
Graham,  1  Colo.  230;  S.  C,  9  Am. Rep.  130;  Abeles  v.  Western  Union 
Tel.  Co.,  37  Mo.  App.  554. 

2  Griffin  v.  Colver,  1G  N.  Y.  489;  s.  C,  09  Am.  Dec.  718. 


RULE    IN    HADLEY    V.    BAXENDALE.  307 

ulative,  contingent  and  remote  damages,  which 
cannot  be  directly  traced  to  the  breach  com- 
plained of,  are  excluded.  Under  the  former 
rule,  such  damages  are  only  allowed  as  may 
be  fairly  supposed  to  have  entered  into  the 
contemplation  of  the  parties  when  they  made  the 
contract,  as  might  naturally  be  expected  to  follow 
its  violation.  It  is  not  required  that  the  parties 
must  have  contemplated  the  actual  damages  which 
are  to  be  allowed.  But  the  damages  must  be  such 
as  the  parties  may  fairly  be  supposed  to  have  con- 
templated when  they  made  the  contract.  Parties 
entering  into  contracts  usually  contemplate  that  they 
will  be  performed,  and  not  that  they  will  be  violated. 
They  very  rarely  actually  contemplate  any  damages 
which  would  flow  from  any  breach,  and  very  fre- 
quently have  not  sufficient  information  to  know 
what  such  damages  would  be.  As  both  parties  are 
usually  equally  bound  to  know  and  be  informed 
of  the  facts  pertaining  to  the  execution  or  breach  of 
a  contract  which  they  have  entered  into,  I  think  a 
more  precise  statement  of  this  rule  is,  that  a  party 
is  liable  for  all  the  direct  damages  which  both  par- 
ties to  the  contract  would  have  contemplated  as 
flowing  from  its  breach,  if,  at  the  time  they  entered 
into  it,  they  had  bestowed  proper  attention  upon 
the  subject,  and  had  been  fully  informed  of  the 
facts."1  This  principle  has  been  thus  well  stated 
by  Allen,  J.,  in  another  case  in  the  same  State  : 
"Whenever  special  or  extraordinary  damages,  such 
as  would  not  naturally  or  ordinarily  follow  a  breach, 
have  been  awarded  for  the  non-performance  of  con- 
tracts, whether  for  the  sale  or  carriage  of  goods,  or 

1  Leonard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544;  s.  c.,1  Am.  Rep. 
146,  152. 


308        ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

for  the  delivery  of  messages  by  telegraph,  it  has 
been  for  the  reason  that  the  contracts  have  been 
made  with  reference  to  peculiar  circumstances  known 
to  both,  and  the  particular  loss  has  been  in  the  con- 
templation of  both,  at  the  time  of  making  the  con- 
tract, as  a  contingency  that  might  follow  the  non- 
performance. In  other  words,  the  damages  given 
by  way  of  indemnity  have  been  the  natural  and 
necessary  consequences  of  the  breach  of  contract, 
in  the  minds  of  the  parties,  interpreting  the  con- 
tract in  the  light  of  the  circumstances  under  which, 
and  the  knowledge  of  the  parties  of  the  purposes 
for  which  it  was  made,  and  when  a  special  purpose 
is  intended  by  one  party,  but  is  not  known  to  the 
other,  such  special  purpose  will  not  be  taken  into 
account  in  the  assessment  of  damages  for  the  breach. 
The  damages  in  such  cases  will  be  limited  to  those 
resulting  from  the  ordinary  and  obvious  purpose  of 
the  contract."1 

§  313.  Special  Circumstances  must  be  Communi- 
cated to  the  Company. — A  negative  brief  statement 
of  this  rule  is,  that  there  can  be  no  recovery  for  a 
loss  arising  from  special  circumstances  not  commu- 
nicated to  the  company  at  the  time  when  the  dis- 
patch is  delivered  to  it  for  transmission,  or  before  it 
has  assumed  the  undertaking,  or  before  the  time 
has  elapsed  within  which  it  has  become  impossible 
for  it  to  perform  it  so  as  to  avoid  loss.2  Unless, 
therefore,  the  language  of  the  dispatch,  as  delivered 
to  the  agent  of  the  company,  shows  its  importance 
or   urgency,  this  must  be  specially  communicated; 

1  Baldwin  v.  United  States  Tel.  Co.,  45  N.  Y.  744;  s.  C,  6  Am.  Rep. 
165,  169. 

2  That  a  loss  arising  from  uncommunicated  special  circumstances  is 
not  an  element  of  damage  for  failure  to  transmit  a  telegram,  see  West- 
ern Union  Tel.  Co.  v.  Way,  83  Ala.  542;  s.  C,  4  South.  Rep.  844. 


RULE    IN    HADLEY    V.    BAXENDALE.  309 

otherwise  no  more  than  the  cost  of  sending  the 
message  which  the  sender  has  paid  to  the  company 
can  be  recovered.1 

§  314.  An  English  Case  in  Illustration  of  the 
Rule. — In  an  English  case,  the  plaintiff  had  con- 
tracted to  deliver  a  lot  of  shoes  in  London  on  Feb- 
ruary 3d,  1871,  intended  for  the  use  of  the  French 
army.  On  delivering  them  to  the  Midland  Railway 
Company  for  transportation,  he  gave  information  to 
the  latter  company  that  the  contract  required  a  de- 
livery on  that  day,  but  did  not  state  the  special 
nature  of  the  contract.  In  consequence  of  the  de- 
lay in  the  carriage  of  the  shoes,  the  contract  could 
not  be  complied  with,  and  the  goods  were  refused. 
The  market  price  had  not  varied  between  the  day 
when  the  shoes  were  due  and  that  on  which  they 
were  received;  but  it  was  below  the  contract  price, 
of  which  the  company  was  ignorant.  It  was  held 
that  the  company  was  not  liable  for  this  difference, 
it  not  having  been  advised  of  the  special  circum- 
stances which  led  to  the  special  loss.2 

§  315.  Agents  Who  Receive  Dispatches  for  Trans- 
mission are  Agents  to  Receive  Such  Information. — It 
would  seem,  from  the  nature  of  the  business  of  tele- 
graph companies,  that  the  agent  of  such  a  company, 
appointed  to  receive  messages  for  transmission, 
should  be  held  to  be  its  agent  for  the  purpose  of  re- 
ceiving any  communication  which  the  sender  of  a 
message  may  desire  to  make  to  the  company  as  to 
the  meaning  of  the  contents  of  the  message,  or  the 
importance  of  its  accurate  and  prompt  transmission. 
The  company  holds  out  such  agents  to  the  public  as 

1  McColl  v.  Western  Union  Tel.  Co.,  44  N".  Y.  Super.  487. 

2  Home  v.  Midland  R.  Co.  L.E.  7  C.  P.  583,  commented  on  in  Wood's 
Mayne  on  Damages,  §  34. 


310        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

properly  qualified  to  make  contracts  to  transmit 
messages.  They  are  in  a  position  to  know  of  any 
reason  which  exists  why  a  message  may  not  be 
promptly  transmitted.  They  must  have  sufficient 
intelligence  to  understand  the  explanation  which 
the  sender  desires  to  give.  From  their  position  they 
have  more  easy  access  to  their  superior  officers  than 
he  has;  and,  therefore,  if  it  become  necessary,  can 
more  easily  communicate  with  them.  If  a  question 
should  arise  as  to  the  propriety  of  accepting  a  mes- 
sage for  transmission,  at  the  time  when  it  is  tend- 
ered, it  would  be  comparatively  easy  for  them  to 
telegraph  for  and  receive  instructions  touching  the 
matter;  while,  if  the  contrary  were  the  rule,  it 
would  result  that  the  sender  of  an  important  mes- 
sage, in  order  to  protect  himself,  must  first  com- 
municate with  the  officers  of  the  company,  who  may 
be  in  a  distant  city,  explain  to  them  the  nature  and 
importance  of  the  message,  and  receive  from  them 
permission  to  transmit  it,  by  which  time  the  pur- 
poses of  his  telegram  may  have  entirely  failed.  It 
is  believed  that  all  the  decisions  which  adopt  the 
rule  of  Hadlay  v.  Baxendale  proceed  on  the  tacit 
assumption  that  the  argent  for  the  purpose  of  receiv- 
ing the  dispatch  for  transmission  is  the  agent  with 
implied  authority  to  receive  such  a  communication 
from  the  sender  of  the  dispatch. 

§  316.  Conclusions  Flowing-  from  these  Rules. — 
An  attentive  survey  of  the  cases  in  which  these  rules 
have  been  applied  will  lead  us  to  the  following  con- 
clusions: 1.  In  all  cases  where  actual  damages — that 
is,  damages  beyond  those  stipulated  against  in  the 
message — are  recoverable,  the  company  will  be  lia- 
ble for  all  damages  which  are  the  direct  result  of  an  v 


RULE    IN    HADLEY    V.    BAXENDALE.  311 

affirmative  action  which  the  person  addressed  was 
induced  to  take  by  the  erroneous  transmission  of  the 
message,  provided  that,  from  the  terms  of  the  mes- 
sage itself,  or  from  information  communicated  to  the 
defendant  at  or  before  the  time  it  was  delivered  to  the 
defendant,  or  otherwise,  the  company  was  apprised 
that  the  character  of  the  communication  was  such 
as  might  lead  to  such  action.1  2.  Where  the  mes- 
sage on  its  face  was  designed  to  'prevent  certain  con- 
templated action,  and  the  company  was,  from  its 
terms  or  otherwise,  formally  apprised  that  such  was 
its  purpose,  yet,  in  consequence  of  the  default  of 
the  company  in  failing  to  transmit  it  correctly,  or 
in  failing  to  deliver  it  within  a  reasonable  time,  such 
contemplated  action  was  not  prevented,  the  com- 
pany will  be  liable  for  the  resulting  damages.2  3.  But 
that  the  company  will  not  be  liable  in  any  case  for 
damages  from  the  gain  of  advantages  or  profits  or 
the  prevention  of  disadvantages  or  losses,  which 
might  or  miglrf  not  have  taken  place,  according  to 
uncertain  contingencies,  if  the  dispatch  had  been 
correctly  transmitted,  on  the  one  hand,  or  seasona- 
bly delivered  on  the  other.3 

1  Post,  §  335,  et  seq. 

2  Pout,  §  323. 

3  Post,  §  346,  et  seq. 


312         ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 


Article  II.— PROXIMATE  AND  REMOTE  DAMAGES. 

Section. 

318.  Only  Direct  or  Proximate  Damages  Recoverable. 

319.  Damages  Due  to  the  Operation  of  an  Intervening  Cause. 

320.  Intervening  Fraud  of  a  Third  Person. 

321.  Non-Delivery  of  Message  Asking  for  Information. 

322.  Error  in  Message  Notifying  Date  of  Trial  of  a  Cause. 

323.  Non-Delivery  of  Message  Requesting  Postponement  of  a  Judi- 

cial Trial. 

324.  Other  Iustances  of  Damages  too  Remote. 

325.  Loss  of  Fee  by  a  Professional  Man. 

326.  Losing  a  Chance  of  Obtaining  Employment. 

327.  Plaintiff  Failing  to  Obtain  Employment. — Rule  under  Indiana 

Statute. 
32S.    The  Same  Subject :    Nebraska  Statute. 

329.  Loss  of  Opportunity  to  Save  Debt  by  Attachment. 

330.  Operator    Fraudulently     Withholding     Message     Announcing 

Failure  of  Bank. 

331.  Right  to  Recover  the  Cost  of  Sending  Message. 

§  318.  Only  Direct  or  Proximate  Damages  Re- 
coverable.— If  we  keep  in  mind  the  proposition, 
applicable  in  every  case  except  where  the  damages 
are  liquidated  by  statute  or  by  the  contract  of  the 
parties,  or  where  exemplary  damages  are  given, 
that  the  damages  must  be  the  natural  and  direct  or 
proximate  consequences  of  the  default  complained 
of,  we  shall  have  the  rule  by  which  to  solve  the 
difficult  question  as  to  the  measure  of  damages 
which  arise  in   actions  of  this  kind  ;l  but  we  shall 

JThe  expression  is  constantly  met  with  in  judicial  opinions  on  this 
subject,  that  the  sender  of  a  telegram  is  entitled  to  such  damages  as  are 


PROXIMATE    AND    REMOTE    DAMAGES.  313 

not  be  prepared  to  make  an  intelligent  application 
of  it,  unless  we  give  attention  to  the  precedents 
established  by  the  most  authoritative  legal  judg- 
ments. Indeed,  the  rule  in  Hadley  v.  Baxendale1  is 
one  of  the  familiar  forms  of  expressing  the  well- 
known  theory  of  proximate  and  remote  cause  when 
applied  to  the  question  of  the  damages  resulting 
from  the  breach  of  contracts ;  and  it  has  been  ex- 
plained by  saying  that  if  the  consequences  resulting 
to  the  sender  of  the  message,  from  the  failure  of  the 
company  to  deliver  it,  are  not  the  ordinary  result  of 
such  failure,  and  could  not,  therefore,  have  been  in 
the  contemplation  of  either  party  when  the  company 
undertook  to  transmit  it,  the  company  will  not  be 
liable  for  such  consequences,  but  only  for  nominal 
damages  for  its  default.2 

§  319.  Damages  Due  to  the  Operation  of  an  In- 
tervening Cause. — The  maxim  causa  proxima  non 
remota  spectatur  applies  where  the  telegraph  com- 
pany is  in  default,  but  where  its  defaulf  is  made  in- 
jurious to  a  party  only  by  the  operation  of  some 
other  intervening  cause.  In  such  a  case,  the  appli- 
cation of  the  rule  embodied  in  the  above  maxim 
would  relieve  the  company  from  liability.  ThusA 
where  a  telegram  was  sent  by  the  defendant's  line 
to  the  plaintiff,  asking  for  .$500,  and,  by  the  negli- 
gence of  the  defendant's  employees,  the  message 
was  changed  to  $5,000,  which  sum  the  plaintiff  sent 

the  natural  and  proximate  consequence  of  the  company's  negligence. 
Pegram  v.  Western  Union  Tel.  Co.,  100  N.  C.  28;  Western  Union  Tel. 
Co.  v.  Edsall,  74  Tex.  329;  s.  C,  12  S.  W.  Rep.  41 ;  Western  Union  Tel. 
Co.  v.  Brcesche,  72  Tex.  654;  s.  c,  10  S.  W.  Rep.  734;  Gulf,  etc.  R.  Co. 
v.  Wilson,  69  Tex.  739;  s.  c,  7  S.  W.  Rep.  653;  Parks  v.  Alta  California 
Tel.  Co.,  13  Cal.  422;  s.  c,  73  Am.  Dec.  589. 

]9  Exch.  341;  s.  C,  26  Eng.  Law  &  Eq.  398;  ante,  §  311. 

2 Smith  v.  Western  Union  Tel.  Co.,  83  Ky.  104;  s.  c,  4  Am.  St.  Rep. 
126. 


314         ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

to  the  person  who  had  telegraphed,  and  he  ab- 
sconded with  it,  it  was  held,  in  an  action  against 
the  telegraph  company,  by  the  New  York  Court 
of  Appeals  (reversing  the  lower  court),  that  the  de- 
fendant's negligence  was  not  the  proximate  cause  of 
the  loss,  as  the  embezzlement  of  the  money  did  not 
naturally  result  therefrom,  and  could  not  reason- 
ably have  been  expected.1  We  may,  however,  take 
leave  to  doubt  the  soundness  of  another  decision, 
which  charged  the  telegraph  company  with  liability 
for  a  negligent  failure  to  deliver  a  message  from  a 
son  to  his  mother,  stating  that  he  was  very  sick  and 
requesting  her  to  come  to  him  immediately,  where 
the  mother  was  unable  to  go  on  the  first  train  which 
departed  after  receiving  the  message,  which  train 
would  have  taken  her  there  in  time,  but  was  only 
able  to  go  on  a  later  train  which  would  have  taken 
her  there  in  time  but  for  the  fault  of  the  railroad 
company ;  such  intervening  fault  being,  in  the 
opinion  of  the  court,  no  defense  to  the  telegraph 
company  when  sued  for  its  negligent  failure  to  de- 
liver the  message.2 

§   320.   Intervening-  Fraud  of  a  Third  Person. — 

Suppose  that  there  is  offered  to  a  bank  for  disco  nut  a 
'I raft  drawn  upon  a  distant  firm.  Suppose  that  the 
bank,  through  its  cashier,  before  doing  so,  writes  a 
letter  to  a  correspondent  at  the  place  where  the  firm  is 
resident,  making  such  inquiries  as  it  deems  needful, 
in  order  to  determine  whether  it  will  discount  the 
draft  or  not.  Suppose  that  in  this  letter  the  bank 
directs  its  correspondent,  if  everything  is  satisfac- 
tory not  to   telegraph;  but  otherwise,  to  telegraph. 

1  Lowery  v.  Western  Union  Tel.  Co.,  60  N.  Y.  198. 
2Loper   v.  Western   Union  Tel.  Co.,  70  Tex.  689;  s.  C,  8  S.  W.  Rep. 
600. 


PROXIMATE    AND    REMOTE    DAMAGES.  315 

Suppose  further  that  the  correspondent,  after  making 
inquiries,  sends  to  the  bank  a  dispatch  like  the  fol- 
lowing :  "Parties  will  accept  if  bill  of  lading  ac- 
companies the  draft."  Suppose  that  the  telegraph 
company  negligently  fails  to  deliver  this  dispatch 
at  all,  and  that,  in  consequence  of  this  negligence, 
the  bank,  not  getting  the  telegraphic  information 
which  it  advised  its  correspondent  to  send  in  case 
anything  was  unsatisfactory,  discounts  the  draft. 
Suppose,  further,  that  the  drawer  of  the  draft,  as 
soon  as  he  obtains  the  money,  disappears,  and  that 
when  the  draft  is  presented,  not  being  accompanied 
by  a  bill  of  lading,  and  the  drawer  having  no  funds 
in  the  hands  of  the  drawees,  it  is  dishonored.  On 
these  facts,  can  the  bank  maintain  an  action  against 
the  telegraph  company  for  more  than  nominal 
damages,  or  for  anything  at  all?  It  has  been  held, 
on  substantially  these  facts,  that  the  telegraph  com- 
pany is  not  liable  to  the  bank  for  substantial  dama- 
ges, on  the  ground  that  the  damages  were  too 
remote.  They  were  produced  by  the  intervening 
'wrong  of  a  third  person,  to-wit,  a  person  who  was 
neither  the  sender  of  the  dispatch  nor  the  person  to 
whom  it  was  sent,  but  an  outside  person  about  to 
have  a  business  transaction  with  the  bank.  The  name 
of  this  man  was  Lowshe,  and  the  court  said  of  what 
he  did:  "Clearly  the  failure  in  the  message  was 
not  the  moving  cause  that  induced  Lowshe  to  obtain 
the  discounts  and  pocket  the  money;  neither  would 
the  delinquency  of  the  telegraph  company  have  oc- 
casioned any  damage,  had  Lowshe  evidenced  that 
integrity  which,  in  a  virtuous  mind,  would  have  in- 
duced the  return  of  the  money  to  the  bank.  The 
loss  was  occasioned  by  two  causes  :  the  short-coming 


316       ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

of  the  telegraph  company  in  not  delivering  the 
message,  and  the  still  shorter  coming  of  Lowshe  in 
appropriating  to  himself  what  belonged  to  some- 
body else."  And  it  was  held" that  the  plaintiff  was 
entitled  to  recover  nominal  damages  only.1  The 
decision  of  the  court  is  supported  on  another  ground, 
stated  in  a  number  of  cases  cited  in  the  opinion,  to- 
wit,  the  rule  in  Hadley  v.  Baxendale,  elsewhere  dis- 
cussed.2 There  was  nothing  in  the  dispatch  which 
the  company  failed  to  deliver  which  had  a  tendency 
to  apprise  it  that  some  irresponsible  person  was 
about  to  draw  a  draft  on  sombody,  and  that  such  a 
state  of  facts  existed  that  the  bank  would  cash  the 
draft  unless  this  dispatch  was  received,  and  that 
when  the  irresponsible  person  thus  obtained  the 
money  of  the  bank  he  would  run  away  with  it. 

§  321 .  Non-Delivery  of  Message  Asking-  for  Infor- 
mation.—  The  results  which  flow  from  the  non- 
delivery of  messages  asking  for  information  upon 
which  to  base  some  undisclosed  contemplated  action, 
in  Consequence  of  which  non-delivery  no  reply  is 
sent  and  the  information  is  not  received,  must  be 
placed  in  the  category  of  remote,  contingent  or 
problematical  damages,  which  are  not  recoverable. 
They  fall  within  the  rule  elsewhere  stated,3  that  the 
damages  will  be  limited  to  those  resulting  from  the 
ordinary    and    obvious   purpose    of    the    message." 


1  First  Nat.  Bank  v.  Western  Union  Tel.  Co.,  30  Ohio  St.  555 ;  s.  C,  27 
Am.  Rep.  485,  491. 

2  Ante,  §311. 
sAnte,  §  311. 

4  Hadley  v.  Baxendale,  9  Exch.  341;  Cory  v.  Thames  Iron  Works,  L. 
R.  3  Q.  B.  181;  Leonard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544;  s.  c, 
1  Am.  Rep.  446;  Messmore  v.  New  York,  etc.  Co.,  40  N.  Y.  422;  United 
States  Tel.  Co.  v.  Gildersleve,  29  Md.  232;  Griffin  v.  Colver,  16  N.  Y. 
489,  493;  Landsberger  v.  Magnetic  Tel.  Co.,  32  Barb.  (N.  Y.)  530. 


PROXIMATE    AND    REMOTE    DAMAGES.  317 

Applying  this  rule,  a  judgment  for  $1,200  damages 
was  reversed,  where  the  case  was  as  follows  :  A  tele- 
gram was  presented  at  Ogdensburg,  New  York,  for 
delivery  at  Rouseville,  in  Pennsylvania,  as  follows: 
"Telegraph  me  at  Rochester  what  that  well  is  doing. ' ' 
The  telegram  was  misdelivered,  and  was  not  re- 
ceived until  several  days  afterwards.  Not  hearing 
from  the  person  to  whom  it  was  sent,  the  sender 
accepted  a  previous  offer  of  $3,800  for  his  interest 
in  the  oil  well  referred  to  in  the  telegram.  A  few 
minutes  after  this  sale  was  effected,  the  plaintiff 
received  the  following  telegram  from  the  person  of 
whom  the  previous  inquiry  had  been  made  :  "  Well 
flowing  eighty  barrels.  New  well  pumping  twenty- 
five  barrels.  Can  sell  your  interest  for  $5,000. 
Telegraph  me  refusal  for  ten  days.  Have  Perry 
transfer  to  me."  Evidence  was  admitted,  over  the 
defendant's  objection,  that  the  plaintiff  told  the 
operator  at  Ogdensburg,  when  he  delivered  the  first 
telegram,  that  he  had  received  au  offer  of  $3,800  for 
the  property  and  wanted  to  get  an  answer  from 
Rouseville  to  prevent  his  selling  at  that  price,  if 
there  were  more  favorable  prospects  in  regard  to  the 
property.  In  addition  to  the  reasons  founded  on 
the  rule  in  Hadley  v.  Baxendale,1  as  above  stated, 
the  court  gave  what  in  this  case  would  seem  to  be  a 
better  reason,- in  the  following  language  in  its  opin- 
ion, delivered  by  Allen,  J.:  "Indeed,  I  doubt  if 
under  any  construction  of  the  contract,  or  in  any 
view  of  the  rights  and  obligations  of  the  parties, 
such  damages  could  be  recovered  by  the  plaintiffs, 
as  the  result  of  the  non-delivery  of  the  message. 
They  are   quite  too  remote,  and   depend  upon  too 

1  Ante,  §311. 


318        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

many  contingencies.  Had  the  message  been  received, 
the  agent  might  or  might  not  have  answered  it;  and 
what  the  answer  would  have  been  cannot  certainly 
be  known.  The  answer  might  or  might  not  have 
been  received  by  the  plaintiffs  at  Rochester,  and, 
if  received,  it  is  conjectural  what  might  have  been 
the  action  of  the  plaintiffs  thereon.  Again,  the 
sale  without  an  attempt  to  obtain  further  informa- 
tion was  the  voluntary  act  of  the  plaintiffs,  neither 
caused  nor  encouraged  by  the  act  or  default  of  the 
defendant.  The  mere  assertion  to  the  operator  at 
Ogdensburg,  had  he  been  the  agent  of  the  defend- 
ant, that  they  would  sell  if  no  answer  was  received 
to  the  message,  did  not  relieve  them  of  the  duty 
resting  upon  all  persons,  for  whose  losses  others 
may  be  liable  to  respond,  to  take  all  reasonable 
measures  to  avoid  loss  or  to  diminish  the  damages 
that  may  occur."1 

§  322.  Error  in  Message  Notifying-  Date  of  Trial 
of  a  Cause. —  Where  the  plaintiff  was  under  a 
recognizance  to  appear  as  a  witness  in  a  cause 
pending  in  a  court  at  a  distant  place,  and  counsel 
in  the  case  deposited  with  the  telegraph  company 
a  dispatch  notifying  him  that  the  cause  was  set  for 
trial  on  the  17th  of  the  month,  but  the  dispatch,  as 
delivered  to  the  plaintiff,  read  the  7th, — it  was  held 
that  he  was  entitled  to  recover  his  reasonable  ex- 
penses in  going  to  and  from  the  trial,  and  the  value 
of  his  time  ;  but  that,  there  being  no  evidence  that 
the  company  had  notice  of  special  circumstances 
connected  with  the  sending  of  the  message,  it  was 
not   liable    for  loss  to  plaintiff  resulting  from  the 

1  Baldwin  v.  United  States  Tel.  Co.,  45  N.  f.  744;  s.  c,  6  Am.  Rep. 
165,  172. 


PKOXIMATE    AND    REMOTE    DAMAGES.  319 

necessity  of  shutting  down  his  mill,  idleness  of  his 
teams,  etc.,  during  his  absence.1 

§  323.  Non-Delivery  of  a  Message  Requesting 
Postponement  of  a  Judicial  Trial. —  In  a  case  ill 
New  York,  the  plaintiff  entrusted  to  the  defendant, 
a  telegraph  company  at  the  city  of  New  York,  for 
transmission  by  telegraph,  a  message  directed  to 
his  attorney  at  Buffalo,  as  follows  :  "Hold  my  case 
till  Tuesday  or  Thursday.  Please  reply."  The 
plaintiff,  at  the  same  time,  informed  the  servant  of 
the  company  who  had  charge  of  the  receipt  of  mes- 
sages for  transmission,  that  the  message  related  to 
a  cause  in  Buffalo  that  was  expected  to  be  called, 
and  that  it  was  of  great  importance  that  the  party 
sending  it  should  get  a  reply  the  next  day,  in  order 
that  he  might  know  when  to  go  to  Buffalo.  The 
message  was  never  sent  at  all.  The  plaintiff  waited 
for  a  reply  and  received  none;  and,  supposing  that 
an  adjournment  of  the  case  could  not  be  procured, 
went  with  his  counsel  to  Buffalo,  to  attend  the 
trial,  and  found  that  the  case  had  been  adjourned. 
He  was,  accordingly,  obliged  to  go  again  to-  Buffalo 
with  his  counsel  to  attend  at  the  trial  at  the  ad- 
journed day.  It  was  held  that  he  was  entitled  to 
recover  as  damages,  not  only  the  expense  of  himself 
and  counsel  on  the  first  journey  to  Buffalo,  but  also 
the/ee  which  he  was  obliged  to  pay  his  counsel  for 
going  there  the  next  time.  The  court  reasoned 
that  it  was  a  natural  inference  for  the  plaintiff  to 
draw  from  the  failure  to  receive  a  reply,  that  the 
party  addressed  was  absent  from  Buffalo,  and  that 
his  message  had  failed  to  accomplish  its   object,  for 

1  Western  Union  Tel.  Co.  v.  Short,  53  Ark.  434;  S.  p.,  *J  L.  R.  A.  744; 
tJRail.  &  Corp.  L.  .1.  11;  14  S.  W.  Rep.  649. 


320        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

which  reason  the  attendance  of  himself  and  counsel 
at  Buffalo  was  required.  "This  was  a  more  natural 
and  reasonable  inference  to  draw,  and  to  act  upon, 
than  to  infer  that  the  reason  why  no  reply  had 
been  received  was  because  the  defendant  had  not 
sent  the  message,  especially  as  the  object  and  im- 
portance of  it  had  been  made  known  to  the  telegraph 
company  when  it  was  delivered  to  him  for  the 
transmission."  ' 

§  324.  Instances  of  Damages  too  Remote. — The 
damages  have  been  held  too  remote,  contingent, 
problematical,  and  hence  not  recoverable,  in  the 
following  cases  :  Where,  owing  to  the  delay  of  a 
telegraph  company  in  delivering  a  dispatch,  a  barge 
did  not  reach  a  lot  of  staves  in  time  to  prevent  their 
being  lost  by  a  flood  f  where  there  was  delay  in  de- 
livering a  telegram,  announcing  the  death  of  a 
person,  without  giving  the  company  notice  of  his 
relationship  to  the  person  addressed,  in  consequence 
of  which  the  person,  a  brother  of  the  deceased, 
failed  to  attend  the  funeral;3  where  the  plaintiff, 
by  reason  of  the  non-delivery  of  the  message,  was 
obliged  to  take  a  rough  vehicle  instead  of  the  family 
carriage,  in  consequence  of  which  he  received 
sundry  bruises.*  So,  it  has  been  held  that  a  telegraph 
company,  failing  to  deliver  a  message  ordering  a 
saw,  is  not  liable  for  damages  in  consequence  of  a 
mill  lying  idle  for  want  of  it,  where  the  message  did 
not  show  for  whom  the  article  was  intended,  and 

1  Sprague  v.  Western  Union  Tel.  Co.,  6  Daly  (N.  Y.),  200;  s.  c,  af- 
firmed on  this  opinion,  67  N.  Y.  590. 

2  Bodkin  v.  Western  Union  Tel.  Co.,  31  Fed.  Rep.  134. 

3  Western  Union   Tel.  Co.  v.  Brown,  71  Tex.  723;  s.  c,  2  L.  R.  A. 
766;  10  S.  W.  Rep.  32. 

4McAllen  v.  Western   Union   Tel.  Co.,  70  Tex.  243;  s.  c,  7  S.  W. 
Rep.  715. 


PROXIMATE    AND    REMOTE    DAMAGES.  321 

the  telegraph  agent  did  not  know  that  the  mill  was 
lying  idle  on  that  account.1  So,  where  the  plaintiff 
sent  a  telegram  requesting  R.  to  meet  him  at  C,  on 
Saturday  night,  and  the  dispatch  was  not  delivered, 
a  petition  in  an  action  against  the  telegraph  com- 
pany, alleging  that  by  his  negligence  he  was  put  to 
expense  in  hiring  a  conveyance  to  go  from  C.  to 
R.'s  home,  and  back  again  ;  that  by  loss  of  time  he 
failed  to  meet  important  engagements;  and  that,  by 
reason  of  exposure,  his  health  was  greatly  impaired 
was  held  bad  on  demurrer,  the  damages  being 
too  remote,  conjectural,  and  not  in  contemplation 
of  the  parties  as  a  consequence  of  a  breach  of  the 
contract.2  So,  the  loss  of  a  note  which  plaintiff 
avers  his  father  would  have  given  him,  had  he  been 
able  to  see  him  before  his  death,  has  been  held  a 
consequence  too  remote  to  sustain  a  claim  for 
damages.3 

§  325.  Loss  of  Fee  by  a  Professional  Man. — 
Where  a  telegram  is  sent  to  a  person  summoning  him 
to  perform  a  certain  service,  and,  in  consequence  of 
its  not  being  seasonably  delivered,  he  loses  the  job, 
so  to  speak,  the  measure  of  his  damages  seems  to 
be  what  he  would  have  been  able  to  make  out  of  the 
job,  if  the  dispatch  had  been  duly  delivered  to  him, 
less  what  he  actually  did  make  during  the  time. 
This  is  illustrated  by  a  case  where  a  telegram  was 
sent  to  a  physician  summoning  him,  but,  through 
the  negligence  of  the  company,  it  was  not  delivered 

1  Elliott  v.  Western  Union  Tel.  Co.,  75  Tex.  18;  s.  c,  12  S.  W.  Rep. 
954.    See  ante,  §  311. 

2  Western  Union  Tel.  Co.  v.  Smith,  76  Tex.  253;  s.  C,  13  S.  W.  Rep. 
169. 

3  Chapman  v.  Western  Union  Tel. Co.  (Ky.),  13  S.  W.  Rep.  880;  s.  C, 
30  Am.  &  Eng.  Corp.  Cas.  626. 

(21) 


322        ACTIONS    AGAINST   TELEGRAPH    COMPANIES, 

to  him  until  it  was  too  late  to  make  the  visit,  and 
until  after  the  order  had  been  countermanded. 
There  was  testimony  that  a  reasonable  compensa- 
tion for  the  services  expected  "to  be  performed  by 
the  physician  would  have  been  $500,  and  that  the 
sender  of  the  message  was  solvent.  It  was  held, 
that  the  difference  between  such  sum  and  what  the 
physician  earned  during  the  time  that  he  would 
have  been  absent  on  such  visit,  was  the  measure  of 
damages.1 

§  326.  Losing  a  Chance  of  Obtaining  Employ- 
ment.— The  rule  is  the  same  where,  through  the  neg- 
ligence of  the  telegraph  company  in  not  delivering  a 
dispatch,  the  plaintiff  fails  to  obtain  a  salaried  posi- 
tion which  is  tendered  to  him:  the  measure  of  his 
damages  is  the  difference  between  the  amount  of 
such  salary  and  the  amount  actually  earned  by  him, 
during  the  period  of  the  tendered  employment.2  But 
where,  in  consequence  of  such  a  failure,  the  plaint- 
iff lost  the  chance  to  work  by  the  day  for  a  period 
of  time  not  stipulated,  it  was  held,  that  the  com- 
pany was  liable  in  nominal  damages  only.3  But, 
with  due  respect  to  this  court,  it  should  seem  that 
the  plaintiff  was  entitled  to  recover  at  least  what  he 
would  have  obtained  for  one  day's  work.  Beyond 
that,  it  might  well  be  held,  in  conformity  with  prin- 
ciples already  discussed,  that  everything  was  spec- 
ulative or  contingent. 

§  327.  Plaintiff  Failing  to  Obtain  Employment — 
Rule  Under  Indiana  Statute. — A  statute  of  Indiana 
contained  this  provison :  "Telegraph  companies 
shall  be  liable  for  special  damages  occasioned   by 

1  Western  Union  Tel.  Co.  v.  Longwill   (X.  M.).  21  Pac.  Rep.  339. 

2  Western  Union  Tel.  Co.  v.  Valentine,  IS  111.  App.  57. 

3  Merrill  v.  Western  Union  Tel.  Co.,  7S  Me.  97. 


PROXIMATE    AND    REMOTE    DAMAGES.  323 

failure  or  negligence  of  their  operators  or  servants 
in  receiving,  copying,  transmitting,  or  delivering 
dispatches,  or  for  the  disclosure  of  the  contents  of 
any  private  dispatch  to  any  person  other  than  to 
whom  it  was  addressed,  or  his  agent."1  Under  this 
statute,  an- action  was  brought  against  a  telegraph 
company  to  recover  the  damages  which  the  plaintiff 
had  sustained  by  the  failure  of  the  company  to  de- 
liver, within  a  reasonable  time,  a  telegram  directed 
from  a  place  without  the  State  of  Indiana,  to  the 
plaintiff  at  a  place  within  that  State;  by  reason  of 
which  negligence  the  plaintiff  had  failed  to  obtain 
employment  as  a  steamboat  pilot  at  certain  wages 
per  month,  for  a  trip,  and,  if  he  suited,  for  the 
season.  He  did  not,  in  fact,  obtain  employment 
for  some  time  thereafter,  and  the  sender  of  the  mes- 
sage was  not  acting  as  his  agent  in  sending  it.  It 
was  held  that,  under  the  statute,  the  plaintiff  was 
entitled  to  recover,  although  no  contract  relation 
existed  between  him  and  the  telegraph  company, 
and  also  that  the  damages  sought  by  the  action 
were  not  remote  or  speculative.  The  court  said, 
among  other  things:  "This  section  is  clearly  broad 
enough  to  authorize  a  person,  to  whom  a  dispatch 
is  sent,  to  recover,  in  a  proper  case,  though  the  re- 
lation of  contractors  does  not  exist  between  him 
and  the  company.  With  regard  to  the  damages, 
they  are  neither  remote  nor  speculative.  We  gather 
from  the  evidence  that  the  plaintiff  would  have  re- 
alized from  the  employment  at  least  $150  per  month, 
and  it  is  clear  that,  but  for  the  alleged  negligence 
of  defendant  in  failing  to  deliver  the  dispatch  in  a 
reasonable  time,  he   would  have  obtained  the  em- 

1 1  Gav.  &  Hord  Ind.  St.,  p.  Gil,  §  2;  Rev.  St.  Iud.  1888,  §  1177. 


324        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

ployment.  His  failure  to  receive  the  employment 
was  the  direct  result  of  the  delay  in  delivering  the 
dispatch."  The  court,  therefore,  affirmed  a  judg- 
ment for  $210. '  In  a  later  action  under  the  same 
statute,2  against  a  telegraph  company  for  failing  to 
deliver  a  message,  the  plaintiff  alleged  and  gave 
evidence  tending  to  show  that  he  was  thrown  out  of 
an  employment  in  which  he  could  have  made  two  dol- 
lars per  da}7.  An  instruction  that  plaintiff's  dam- 
ages would  be  two  dollars  per  day  from  the  date  of 
sending  the  message  to  the  institution  of  the  suit, 
deducting  for  Sundays,  and  such  amount  as  he  had 
earned  or  might  have  earned  by  reasonable  diligence 
in  seeking  other  work — was  held  sufficiently  favora- 
ble to  the  defendant.3 

§  328.  The  Same  Subject — Nebraska  Statute. — 
Under  the  statute  of  Nebraska,4  making  a  telegraph 
company  liable  for  all  damages  arising  from  its  fail- 
ure to  transmit  correctly  messages  intrusted  to  it, 
notwithstanding  any  condition  in  its  printed  blanks 
exempting  it  from  such  liability,  such  company  is 
liable  for  the  damages  sustained  by  a  person  who 
lost  a  promised  situation  by  reason  of  the  incorrect 
transmission  of  a  message  to  a  point  without  the 
State,  though  the  blank  used  by  plaintiff  contained 
a  condition  limiting  the  company's  liability  for  fail- 
ure to  deliver  an  unrepeated  message  correctly  to 
the  amount  received  for  the  same.5 


1  Western  Union  Tel.  Co.  v.  Fenton,  52  Ind.  1. 

2  Rev.  St.  Ind.  1888,  §  4177. 

3  Western  Union  Tel.  Co.  v.  McKibben,  114  Ind.  511;  s.  c,  14  N.  E. 
Rep.  894. 

*  Comp.  St.  Neb.  ch.  89a,  §  12. 

5  Kemp  v.  Western  Union  Tel.  Co.  (Neb.),  44  N.  W.  Rep.  1064. 


PROXIMATE    AND    REMOTE    DAMAGES.  325 

§  329.  Loss  of  Opportunity  to  Save  Debt  by  At- 
tachment.— In  a  case  in  California,  the  plaintiff's 
agent  telegraphed  to  him,  informing  him  of  the  fail- 
ure of  a  firm  which  was  indebted  to  him,  and  in- 
quiring the  amount  of  the  debt.  The  plaintiff  de- 
livered to  the  telegraph  company  a  telegram  in  re- 
ply, stating  the  amount  of  the  debt,  and  directing 
the  agent  as  follows:  "Due,  $1,800.  Attach,  if  you 
can  find  property.  Will  send  note  by  to-morrow's 
stage.  '  The  company,  through  gross  negligence, 
failed  to  send  this  reply,  and  other  creditors  seized 
the  whole  property  of  the  failing  debtors.  It  was 
held  that  the  plaintiff  would  be  entitled  to  recover 
the  amount  of  his  debt  from  the  telegraph  company, 
if  he  lost  it  in  consequence  of  the  company's  neg- 
lect.1 It  has  been  pointed  out,  that  here  the  dispatch 
which  the  company  failed  to  deliver  contained  in- 
formation of  the  amount  of  the  plaintiff's  debt,  and 
was  in  terms  sufficient  to  apprise  the  company  of 
what  he  might  lose  by  their  failure  to  deliver  the 
message  promptly,  which  would  be  sufficient  to 
bring  the  case  within  the  rule  of  Hadley  v.  Baxen- 
dale,  as  already  stated.2  In  a  case  in  the  court  of 
common  pleas  of  the  city  of  New  York,  a  court 
which,  though  not  of  final  jurisdiction,  has  been 
regarded  as  of  high  authority,  the  plaintiffs  sent 
for  transmission  a  message  to  the  defendant's  office 
in  New  York  addressed  to  an  attorney  in  Providence, 
Rhode  Island,  directing  him  to  attach  a  house  and 
lot  in  that  city  of  one  B.,  who  was  then  tempo- 
rarily absent  from  Rhode  Island,  for  a  debt  of 
$12,000,  due   by   B.'s   firm   to  the    plaintiffs.     The 

1  Parks  v.  Alta  California  Tel.  Co.,  13   Cal.  122;  s.  c,  73   Am.    Dec. 
589. 

2  Ante,  §  31 1 . 


326        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

message  was  brought  to  the  defendant's  office  at  half 
past  eight  i\  m.  The  office  was  then  closed  for  the 
ordinary  transaction  of  business.  But  their  agent 
was  told  that  the  message  was  important;  that  un- 
less it  was  sent  and  delivered  at  once  it  would  be 
of  no  use;  that  the  object  of  it  was  to  get  an  at- 
tachment upon  property  in  Providence;  that  unless 
it  was  made  before  the  Stonington  train  reached  the 
Rhode  Island  State  line,  it  would  do  no  good;  and 
that  the  agent  would,  consequently,  see  the  impor- 
tance of  the  matter  and  why  the  senders  were  so 
urgent.  The  clerk  of  the  telegraph  company  an- 
swered the  plaintiff's  messenger  that  the  message 
would  be  sent  and  delivered  as  the  plaintiffs  desired, 
and  that  he  would  not  take  the  money  if  he  thought 
there  was  any  doubt  about  it.  The  message  was 
sent  at  ten  minutes  past  nine,  with  directions  from 
the  operator  in  New  York  to  send  it  in  haste.  It 
was  received  by  the  operator  in  Providence  at  half 
nine  p.  m.  This  operator  was  at  the  time  engaged 
in  receiving  reports  for  the  press,  which,  by  statute, 
had  precedence  over  all  other  matter.  He  answered 
the  New  York  operator  that  it  could  not  be  sent  that 
night,  as  the  delivery  boy  had  gone  home.  The 
New  York  operator  replied  that  it  must  be  sent  that 
night,  and  the  Providence  operator  responded  b}r  a 
sign  expressing  his  concurrence.  The  Providence 
operator  was  engaged,  without  cessation,  in  receiv- 
ing newspaper  reports  until  half  past  11  p.  m.,  when 
he  had  the  message  copied  and  sent  to  the  attorney. 
When  the  attorney  received  it,  it  was  too  late  to 
have  the  attachment  made,  before  the  arrival  of  B., 
who  returned  to  Rhode  Island  in  the  Stonington 
train  that  morning.  The  plaintiffs,  by  reason  of  this 


PROXIMATE    AND    REMOTE    DAMAGES.  327 

delay,  lost  the  advantage  of  securing  their  debt  by  an 
attachment  upon  B.'s  house  and  lot,  which  was 
worth  over  $12,000.  The  firm  of  which  B.  was  a  mem- 
ber afterward  went  into  bankruptcy,  and  all  that  the 
plaintiffs  recovered  upon  their  debt  from  the  bank- 
rupt estate  was  $5,000.  On  this  state  of  facts,  it  was 
held  that  the  plaintiffs  were  not  bound  to  exhaust 
their  legal  remedy  against  their  debtors,  by  the  re- 
covery of  a  judgment  and  the  issuing  of  an  execu- 
tion, before  bringing  an  action  against  the  telegraph 
company  for  the  recovery  of  damages.  It  was 
further  held  that  the  measure  of  damages  was  the 
amount  of  the  debt  and  interest  from  the  day  of  the 
delivery  of  the  message,  less  the  $5,000  which  the 
plaintiff  had  received  from  the  bankrupt  estate.1 

§  330.  Operator  Fraudulently  Withholding-  Mes- 
sage Announcing-  Failure  of  Bank. — A  banker  having 
made  an  assignment,  his  assignee  telegraphed  the 
fact  to  the  cashier  of  a  branch  house.  The  message 
was  received  by  the  telegraph  company's  operator 
at  9:15  p.  m.,  and  was  withheld  by  him  until  about 
9:30  the  following  morning.  The  bank  opened 
at  9  a.  m.,  and  before  the  delivery  of  the  message 
the  operator  drew  out  money  owned  by  himself 
and  his  company,  and  other  sums  were  also  paid  out 
to  unpreferred  creditors.  The  usual  time  for  deliv- 
ering dispatches,  when  too  late  the  night  before, 
was  from  8:30  to  9  a.  m.  It  was  held  that  the  com- 
pany was  liable  for  the  money  paid  out  before  the 
message  was  delivered,  but  not  for  the  money  after- 
wards paid.2 

1  Bryant  v.  American  Tel.  Co.,  1  Daly  (X.  Y.),  575.  A  like  rule  of 
damages  was  declared  and  applied  on  similar  facts  in  Western  Cuiou 
Tel.  Co.  V.Sheffield,  71  Tex.  570;  s.  C,  10  Am.  St.  Rep.  700;  10  S.  W. 
Rep.  752. 

-  Stiles  v.  Western  Union  Tel.  Co.  (Av'v/..),  15  P&C.  Rep.  712. 


328        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

§  331.  Right  to  Recover  the  Cost  of  Sending  Mes- 
sage.— A  late  decision  of  the  Supreme  Court  of  North 
Carolina  places  the  right  of  the  sender  of  the  mes- 
sage to  recover  even  the  cost  of  sending  it,  where  it 
is  not  delivered,  upon  affirmative  proof  by  him  of 
negligence  on  the  part  of  the  company, — ignoring, 
as  some  of  the  decisions  do,1  the  view  that  the  fail- 
ure to  deliver  the  message  is,  of  itself,  'prima  facie 
proof  of  negligence.  That  court  has,  accordingly, 
held  that  an  instruction,  in  such  an  action,  that  the 
plaintiff  is  entitled  to  recover  in  any  event  the  cost 
of  sending  the  message,  is  erroneous,  and  that  the 
error  is  not  cured  by  the  giving  of  another  instruc- 
tion that  the  plaintiff  cannot  recover  if  the  defend- 
ant exercised  due  diligence.2  The  court  seem  to  be 
entirely  oblivious  to  the  nature  of  the  undertaking 
of  a  telegraph  company.  It  is  not,  like  the  under- 
taking of  a  surgeon  or  lawyer,  an  undertaking  to 
use  reasonable  skill,  but  it  is  an  undertaking  to  pro- 
duce a  certain  result — as  much  so  as  is  the  under- 
taking of  a  common  carrier;  and  if  the  company 
has  failed  in  its  undertaking,  for  any  cause  not  at- 
tributable to  the  plaintiff,  it  is  obvious  that  he  can 
recover  the  money  that  he  has  paid  them,  and  for 
which  they  have  given  him  nothing  in  return. 

1  Ante,  j:  ■!"?<.  et  seq. 

2  Thompson  v.  Western  Union  Tel.  Co.,  106   X.  C.  549;  8.  p.,  11  S.  E. 
Rep.  269;  30  Am.  &  Eng.  Corp.  Cas.  034. 


LOSS    OF    PROFITS.  329 


Article   III.— LOSS   OF   PROFITS. 

Section. 

335.  Mistake  in  Transmitting  Message  Ordering  Sales  or  Making  or 

Directing  Purchases. 

336.  Mistakes  in  Dispatches  Ordering  Goods. 

337.  Ordering  Broker  to  Buy  or  Sell. 

33S.    Mistake  Resulting  in  Goods  being  Sent  to  the  Wrong  Place. 

339.  Other  Instances  of  Loss  of  Profits  where  Dispatch  Ordered  Af- 

firmative Action. 

340.  Damages  Arising  from  Mistakes  in  Quoting  Prices. 

341.  Cases  in  Illustration. 

342.  Dispatch  Quoting  Prices  Sent  by  a  Volunteer. 

343.  Damages  from  Delay  of  Message  Accepting  Offer  of  Sale. 

344.  Illustration  :    Loss  of  Weight  of  Cattle. 

345.  View  that  Rule  is  Inapplicable  where  Object  is  Speculation. 

346.  Loss  of  Certain  Profits  Recoverable :  Loss  of  Contingent  Profits 

Not. 

347.  Application  of  this  Principle. 

348.  Illustrations  of  It. 

349.  Further  Illustrations. 

350.  Further  Illustrations. 

351.  A  Modified  Holding. 

352.  Loss  of  Profits  on  Intended  but  not  Completed  Contracts. 

353.  No  Damages  under  Illegal  Contracts:     Option  Deals. 

§  335.  Mis.take  in  Transmitting  Message  Ordering 
Sales  or  Making  or  Directing  Purchases. — In  illustra- 
tion of  the  first  of  the  foregoing  propositions,  it  may 
be  stated  generally,  that,  where  a  sale  or  a  purchase 
is  ordered  by  telegraph,  and  the  dispatch  is  not 
correctly  delivered,  or  is  not  delivered  at  all,  or 
within  a  reasonable  time,  there  is  much  judicial 
authority  for    the    general     proposition     that    the 


330        ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

measure  of  damages  is  the  loss  of  profits  which  the 
sender,  or  the  person  to  whom  it  is  addressed,  in 
case  it  is  sent  for  his  benefit,  sustained  by  reason  of 
the  negligence  of  the  telegraph  company.1  It  has 
been  held  that  a  person  who  has  purchased  property 
by  telegram,  and  has  advanced  money  towards  its 
purchase,  and  needs  the  property  in  his  business, 
on  discovering  a  mistake  in  the  price  named  in  the 
telegram,  is  justified  in  receiving  the  property  and 
relying  upon  his  own  judgment  to  make  the  loss  as 
small  as  possible,  and  can  maintain  an  action 
against  the  telegraph  company  for  the  damages 
actually  sustained.2 

§  336.  Mistakes  in  Dispatches  Ordering-  Goods. — 
So,  where  a  telegraph  company  received  a  message, 
ordering  from  a  florist  "two  hand-bouquets,"  and 
the  agent  of  the  company,  erroneously  supposing 
the  word  "hand"  to  be  "hund,"  and  to  mean 
"hundred,"  delivered  it  thus  altered,  and  the  two 
hundred  bouquets  were  accordingly  prepared, — it 
was  held,  in  an  action  against  the  telegraph  company 
by  the  florist,  that  he  was  entitled  to  recover  the 
loss  sustained  and  the  expense  incurred  in  cutting 
and  procuring  the  large  number  of  flowers  required 
for  the  bouquets.3  So,  where  a  dispatch  was  deliv- 
ered, in  Michigan,  to  a  telegraph  company,  ordering 
"one  shawl,"  and  by  a  mistake  of  the  company  the 
message  received  by  the  person  in  New  York,  to 
whom  it  was  directed,  read  "  one  hundred  shawls," 
and,  in   compliance  with  the   message  as  received, 

1  Manvillev.  Western  Union  Tel.  Co.,  37  Iowa,  214;  s.c.,18  Am.  Rep. 
8.    See  the  following  sections. 

2  Western  Union   Tel.  Co.  v.  Du  Bois,  128  111.  248;  s.  c,  21  N.  E. 
Rep.  4. 

3  New  York,  etc.  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  29S  (affirming  s.  c, 

sub.  nom.  Dryburg  v.  Telegraph  Co.,  3  Phila.  (Pa.)  408). 


LOSS    OF    PROFITS.  331 

the  plaintiffs  sent  one  hundred  shawls  to  the  sender 
of  the  message  in  Michigan,  where  they  arrived, 
but  were  reshipped  to  the  consignor  in  New  York, — 
it  was  held,  in  an  action  against  the  company,  that 
the  measure  of  damages  was  the  freight  from  New 
York  to  Michigan  and  back,  and  the  depreciation  in 
the  value  of  the  shawls,  they  having  reached  New 
York  after  the  shawl  season  had  closed.1  In  an- 
other case,  the  plaintiff's  agent  in  Chicago  tele- 
graphed its  agent  in  Oswego  for  5,000  sacks  of  salt. 
By  the  carelessness  of  the  operator,  the  telegram 
was  made  to  read  5,000  casks.  In  pursuance  of  the 
telegram  as  received,  5,000  casks  were  shipped,  for 
which  there  was  no  market  in  Chicago,  and  which 
were  sold  at  a  loss.  In  an  action  against  the  tele- 
graph company  for  damages  arising  from  the  mis- 
take, it  was  held  that  the  measure  of  damages  was 
the  difference  between  the  market  value  of  the  salt 
at  Oswego  and  at  Chicago,  together  with  the  cost  of 
transportation  from  Oswego  to  Chicago.2 

§  337.  Ordering  Broker  to  Buy  or  Sell. — A  tele- 
gram, as  delivered  by  the  plaintiff  to  the  telegraph 
company,  read  :  "If  we  have  any  Old  Southern  on 
hand,  sell  same  before  board.  Buy  five  Hudson  at 
board.  Quote  price."  The  message,  as  trans- 
mitted, read:  "If  we  have  any  Old  Southern  on 
hand,  sell  same  before  board.  Buy  five  hundred  at 
board,"  etc.  Plaintiff's  agent,  who  received  the 
message,  bought  five  hundred  Old  Southern  ;  but 
plaintiff,  hearing  of  this,  immediately  directed  the 
the  sale  thereof,  and  the  purchase  of  five  hundred 
shares  of  the  Hudson  River  Railroad,  according  to 

1  Bowen  v.  Lake  Erie  Tel.  Co.,  1  Am.  L.  Reg.  685. 

2  Leonard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544;  s.  c,  1  Am.  Rep. 
446,  Grover,  J.,  dissenting. 


332         ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

the  intention  of  the  original  message  as  delivered. 
In  the  meantime  Hudson  River  shares  had  risen, 
making  a  difference  to  plain  tiff  of  $1,375.  In  an 
action  against  the  company  for  damages,  it  was  held 
that  the  plaintiff  could  recover,  and  that  the 
measure  of  damages  was  the  rise  in  the  price  of  the 
stock.1  A  telegraph  company  received  the  fol- 
lowing message  for  transmission:  "Cover  two 
hundred  September  and  one  hundred  August."  It 
delivered  the  message  to  the  person  addressed  as 
follows  :  "Cover  two  hundred  September  and  two 
hundred  August."  The  expressions  were  common 
and  well  understood  in  the  cotton  trade.  It  was 
held  that  the  company  was  liable  to  the  sender  for 
the  full  amount  of  the  damages  suffered  by  the 
mistake,  although  the  message  was  not  repeated, 
according  to  its  regulation,  and  notwithstanding  its 
effort,  by  stipulations  on  the  message  blank,  to  limit 
its  liability.2  So,  in  an  action  against  a  telegraph 
company  for  damages  sustained  by  plaintiffs  by 
the  alteration  of  a  message  sent  on  its  line,  whereby 
an  order  to  the  plaintiff's  factors  in  Mobile  to  buy 
five  hundred  bales  of  cotton,  was  altered  to  twenty- 
five  hundred,  and  the  factors  bought  twenty  hundred 
and  seventy-eight  bales  before  the  mistake  in  the 
message  was  discovered, — it  was  held  that  if  the 
company  was  liable  at  all,  the  measure  of  damages 
would  be  what  was  lost  on  the  sale  at  Mobile,  of  the 
excess  above  that  ordered,  or  if  not  sold  there,  what 
would  have  been  the  loss  on  the  sale  of  the  cotton 
at  Mobile    in    the   condition  and  circumstances  in 

1  Rittenhouse  v.  Independent  Line   of  Telegraphs,  44  N.  Y.  263;  s. 
c,  4  Am.  Rep.  673;  affirming  s.  c,  1  Daly  (N.  Y.),474. 

2  Western   Union   Tel.  Co.   v.  Blanchard,  68   Ga.  299;  s.  c,  45  Am. 
Rep.  480. 


LOSS    OF    PROFITS.  333 

which  it  was  when  the  mistake  was  discovered,  in- 
cluding in  such  loss  all  the  proper  costs  and 
charges  thereon,  and  commissions  of  the  factors.1 
In  another  case  the  plaintiffs  agent  delivered  to  a 
telegraph  company  at  Lancaster,  Pa.,  the  following 
telegram,  addressed  to  certain  brokers  in  New 
York  :  "Buy  50  Northwestern,  50  Prairie  du  Chien, 
limit  45."  The  company,  through  negligence,  sent 
it  only  a  part  of  the  way.  Before  the  neglect  was 
ascertained  and  another  order  sent,  the  stocks  had 
risen  in  value.  It  was  held  that  the  plaintiff  was 
entitled  to  recover  the  increased  cost  of  the  shares, 
to  which  he  had  been  subjected  by  the  company's 
negligence.  The  court,  recognizing  the  rule  of 
Hadley  v.  Baxendale,  already  stated,2  said:  "The 
dispatch  was  such  as  to  disclose  the  nature  of  the 
business  to  which  it  related,  and  the  loss  might 
be  very  likely  to  occur  if  there  was  a  want  of 
promptitude  in  transmitting  it."3 

§  338.      Mistake   Resulting-   in  Goods  being-  Sent   to 

the  Wrong  Place. — Where  goods  ordered  by  tele- 
graph are  sent  to  the  wrong  place,  in  consequence  of 
an  error  in  repeating  the  dispatch,  the  measure  of 
damages  is  not  the  full  value  of  the  goods  at  the 
place  to  which  they  should  have  been  sent,  but 
there  must  be  a  deduction  for  their  value  at  the 
place  to  which  they  were  actually  sent/ 

§  339.      Other   Instances   of   Loss  of    Profits   where 
Dispatch  Ordered  Affirmative   Action. — In   a  leading 

1  Washington,  etc.  Tel.  Co.  v.  Hobson,  15  Gratt.  (Va.)  122. 

2  Ante,  §  311. 

3  United  States  Tel.  Co.  v.  Wenger,  55  Pa.  St.  262;  s.  c,  93  Am.  Dec. 
751.  The  court  distinguish  Landberger  v.  Magnetic  Tel.  Co.,  32  Barb. 
(N.  Y.)  550. 

*  Western  Union  Tel.  Co.  v.  lleid,  S3  Ga.  401;  8.  C,  10  S.  E.  Rep. 
919. 


334        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

case  in  Maine  the  plaintiff',  having  received  an  offer 
of  a  cargo  of  corn  at  90  cents  a  bushel,  delivered  to 
the  defendant,  a  telegraph  company,  for  transmis- 
sion, a  message  in   reply  to  "the  offer  written  on  a 
night  message  blank  in  the  following  words  :    "Ship 
cargo  named  at  90,  if  you  can  secure  freight  at  10. 
Wire  us  the  result."     The  message  was  not  deliv- 
ered; by  reason  whereof  the  plaintiff  failed  to  obtain 
the  corn  at  the  terms  offered,  and,  the  price  of  corn 
and  freight  having  advanced,  the  plaintiff  was  com- 
pelled to  purchase  at  higher  terms.     It  was  held 
that,  assuming  that  the  corn  would  have  been  for- 
warded at  the  terms  named  but  for  the  non-delivery 
of  the  message,  the  measure  of  damages  was  the 
difference  between  the  price  stated  and  that  which 
the  plaintiff  would  have  been  obliged  to  pay  at  the 
same  place,  in  order,  by  due  diligence,  after  notice 
of  the  failure  of  the  telegram,  to  purchase  the  like 
quantity  and  quality  of  corn,  together  with  the  ad- 
ditional freight.1     In  another  case,  the  plaintiff  was 
directed  by  his  correspondent  as  follows:     "Ship 
your  hogs  at  once."     The  dispatch  containing  the 
direction  was  delayed  by  the  negligence  of  the  tele- 
graph company  for  four  days.     It  was  held  that  the 
measure  of  damages  was  the  difference,  at  the  place 
of  delivery  of  the  hogs,  between  the  market  value 
of  the  hogs  on  the  day  when  they  would  have  been 
delivered,  had  the  message   been   promptly  deliv- 
ered, and  their  market  value  on  the  day  when  the 
plaintiff  was  able  to  deliver  them  after  the  actual 
receipt  of  the  message.2 

iTrue  v.  International  Tel.  Co.,  60  Me.  9;  s.  c,  11  Am.  Rep,  156 
(Appleton,  C.  J.,  dissenting). 

2  Manville  v.  Western  Union  Tel.  Co.,  37  Iowa,  214;  s.  C,  IS  Am. 
Rep.  8.    See  also  Mowry  v.  Western  Union  Tel.  Co..  51  Hun  (N.  Y.), 


LOSS    OF    PROFITS.  335 

§  340.  Damages  Arising-  from  Mistakes  in  Quoting- 
Prices. — Where,  in  an  apparent  answer  to  a  tele- 
gram, a  letter,  or  other  inquiry,  a  person  delivers  to 
a  telegraph  company  for  transmission,  a  message 
quoting  the  market  price  of  a  certain  commodity, 
the  company  may  fairly  and  reasonably  conclude 
that  the  message  may  induce  the  addressee  to  order 
a  purchase  of  the  commodity,  if  the  price  is  deemed 
favorable.  The  serious  damage  which  may  flow  to 
the  person  addressed  from  a  failure  to  transmit  the 
message  with  entire  accuracy  is  therefore  an  obvious 
suggestion.  If  the  price  is  quoted  too  low,  and  the 
addressee  intends  purchasing  in  that  market,  or  if 
the  price  is  quoted  too  high,  and  the  addressee  in- 
tends purchasing  for  that  market,  it  will  in  either 
case,  probably,  induce  a  purchase  which  will  inure  to 
his  loss.  If  such  a  mistake  is  made  and  the  loss 
follows,  the  company  must  make  it  good.  This  is 
especially  true  where  the  company  itself  undertakes 
to  collect  and  transmit  to  the  customer  information 
as  to  the  state  of  a  definite  market.  When,  there- 
fore, the  plaintiff  had  a  contract  with  a  telegraph 
company,  by  which  it  was  to  furnish  him  with  daily 
market  reports  of  the  price  of  grain  in  Chicago  and 
New  York,  and  on  a  certain  day  it  delivered  to 
him  an  incorrect  report  of  the  market,  by  which  he 
was  induced  to  purchase,  through  his  agent  in  Chi- 
cago, a  quantity  of  grain  to  fill  a  contract  for  future 
delivery,  it  was  held  that  the  measure  of  damages 
was  the  difference  between  the  actual  purchase-price, 


126;  s.  c,  4  N.  Y.  Supp.  666;  Western  Union  Tel.  Co.  v.  Way, 
83  Ala.  542;  s.  c,  4  South.  Rep.  844.  If  profits  would  accrue  on  one 
part  of  the  contract,  and  losses  on  another  part,  the  plaintiff  can  only 
recover  the  difference.    Ibid. 


336         ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

which  was  considerably  greater  than  the  reported 
price,  and  the  price  as  represented  in  the  report.1 

§  341.  Cases  in  illustration. — In  another  case,  it 
appeared  that,  in  response  to  a  letter  of  inquiry,  a 
merchant  telegraphed  to  his  correspondent  that  he 
would  give  "twenty-three  cents  for  good  young 
turkeys."  The  message,  as  delivered,  read  "thirty- 
three,"  and,  at  the  request  of  the  addressee,  the  op- 
erator telegraphed  back  to  inquire  whether  thirty- 
three  was  meant,  and  received  the  answer,  "  Yes." 
Thereupon,  the  addressee  purchased  a  number  of 
turkeys  at  twent}'-five  cents  a  pound  and  shipped 
them  to  the  merchant  sending  the  message.  It  was 
held  that  the  persons  thus  shipping  the  turkeys  were 
entitled  to  recover  of  the  company  the  difference 
between  the  amount  paid  for  them  and  the  cost  of 
transportation,  and  the  amount  received  for  them, 
which  was  twent\r  cents  a  pound,  but  that  they 
could  not  recover  for  the  loss  of  prospective  profits.2 
In  another  case,  a  correspondent  of  the  plaintiff  de- 
livered a  message  to  the  defendant  telegraph  com- 
pan}%  informing  the  plaintiff  that  he  would  sell  him 
apples  at  $1.75  per  barrel,  but  by  a  mistake  of  the 
defendant's  servants  the  message,  as  delivered,  read 
$1.55.  On  the  faith  of  the  message  the  plaintiff 
sent  an  order  to  the  correspondent  for  a  quantity  of 
apples.  He  did  not  discover  the  mistake  until  he 
had  paid  a  part  of  the  price.  The  goods  were  per- 
ishable, and  he  could  not  get  possession  of  them 
without  paying  the  balance  of  the  price  at  the  rate 

1  Turner  v.Hawkeye Tel.  Co.,  41  Iowa,  458;  s.c,  20  Am.  Rep.  605.  See 
also  Leonard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544;  Smithson  v. 
United  States  Tel.  Co.,  29  Md.  162,  and  cases  in  next  section. 

2  Western  Union  Tel.  Co.  v.  Richman,  8  Atl.  Rep.  171;  s.  c,  6  Cent. 
Rep.  565. 


LOSS    OF    PROFITS.  337 

actually  quoted,  that  is,  $1.75  per  barrel.  It  was 
held  that,  under  the  circumstance,  he  was  justified 
in  paying  the  extra  twenty  cents  per  barrel,  and 
that  he  could  recover  it  from  the  defendant.1  In 
another  case,  owing  to  a  mistake  in  the  transmission, 
the  price  of  a  commodity  was  quoted  as  less  than 
the  true  price,  whereupon,  it  was  ordered  by  and 
shipped  to  the  party  inquiring.  Thereafter  the- 
seller,  upon  discovering  the  mistake,  accepted  the 
price  quoted  in  the  telegram,  and  sued  the  company 
for  the  difference  between  that  and  the  true  price. 
It  was  held  that  the  seller  was,  in  the  absence  of  evi- 
dence of  the  market  price  at  either  the  place  of 
sending,  or  the  place  of  receiving  the  goods,  or  of 
the  freight  rates  between  these  points,  entitled  to 
recover  such  difference  from  the  company.2  In  an- 
other case,  the  plaintiff's  agent  deposited  a  message 
at  defendant's  telegraph  office  for  transmission  to* 
the  plaintiff,  to  the  effect  that  he  had  bought  two 
car-loads  of  sheep  at  $5.60  per  hundred.  In  the 
course  of  transmission,  the  word  "  sixty  "  in  the 
message  had  been  changed  to  "six."  Plaintiffs  sold 
the  sheep  before  arrival  at  six  dollars  per  hundred. 
The  court  held  that  the  measure  of  damages  was 
the  difference  between  the  amount  the  sheep  were- 
sold  for  and  their  actual  value.3  In  another  case,  a 
telegraph  company  neglected  to  deliver  a  message 
to  a  live-stock  shipper  as  to  the  state  of  the  market 
at  a  certain  point,  in  consequence  of  which  neglecl 

i  Western  Union  Tel.  Co.  v.  Du  Bois,  128  111.  248;  s.  C,  21  N.  E.  Rep.  I 

2  Pepper  v.  Western  Union  Tel.  Co.,  S7  Tenn.  554;  s.  C,  40  Alb  L. J. 
45;  22  Ohio  L.  J.  115;  4  L.  R.  A.  6G0;  11  S.  W.  Rep.  783. 

3  Western  Union  Tel. Co.  v.  Landis    (Pa.),  12  Atl.  Rep.  467;  8.  C,  2 
Am.  tv  Eng.  Corp  Cas.  200.    See  also,  Western  Union  Tel.  < '<j.  v.  Bar- 
ris,  17  ID.  App.  :547. 

(22) 


338        ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

the  shipper  sent  his  stock  to  the  next  nearest  market, 
at  which  he  received  ten  cents  per  hundred  less  than 
the  market  price  for  the  same  stock  at  the  first  point 
on  the  same  day.  It  was  held  that  the  shipper  was 
entitled  to  recover  from  the  telegraph  company  the 
difference  between  the  market  prices  of  the  two 
points,  with  the  difference  in  freight  added.1 

§  342.  Dispatch  Quoting  Prices  sent  by  a  Volun- 
teer.— In  the  view  of  one  court,  no  damages  are  re- 
coverable for  negligence  in  transmitting  a  message 
announcing  a  rise  in  the  price  of  goods,  whereby 
plaintiff  sold  his  goods  for  less  than  he  could  have 
obtained  had  he  received  the  telegram  promptly, 
where  the  sender  was  under  no  legal  obligation  to 
inform  the  plaintiff  as  to  the  price  of  the  goods,  and 
his  doing  so  was  a  mere  volunteer  act,  and  the  mes- 
sage did  not  relate  to  the  particular  goods  which 
the}7  had  on  hand.2 

§  343.  Damages  from  Delay  of  Message  Accepting 
Offer  of  Sale. — The  measure  of  damages  for  delay  in 
delivering  a  message,  accepting  an  offer  to  sell  goons 
at  a  certain  price,  in  consequence  of  which  the  bar- 
gain is  lost,  is  the  additional  sum  which  the  plaintiff, 
the  sender  of  the  message,  would  have  been  com- 
pelled to  pay  at  the  same  place  in  order  to  obtain 
the  same  quality  of  similar  goods.3     A  similar  rule 

1  Western  Union  Tel.  Co.  v.  Collins  (Kan.),  25  Pac.  Rep.  1S7. 

2  Frazier  v.  AVestern  Union  Tel.  Co..  84  Ala.  187;  S.  c,  4  South.  Rep. 
S31. 

3  Squire  v.  Western  Union  Tel.  Co.,  98  Mass.  232;  8.  c,  93  Am.  Dee. 
157.  This  case  is  cited  and  approved  as  to  the  rule  of  damages  in  True 
v.  International  Tel.  Co.,  GO  Me.  9,  26;  s.  C,  11  Am.  Rep.  156,  and  also 
in  Leonard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544,  568;  S.  C,  1  Am. 
Rep.  416.  It  is  commented  upon  approvingly,  and  distinguished  as  to 
the  question  of  damages,  in  Beaupre  v.  Pacific,  etc.  Tel.  Co..  21  Minn. 
15S;  in  Graham  v.  Western  Union  Tel.  Co.,  10  Am.  L.  Jleg.  (X.  S.) 
.329;    in   Baldwin  v.    United  States  Tel.  Co.,  45  X.  Y.   714,  750,   and 


LOSS    OF    PROFITS.  339 

applies  where  the  telegram  accepts  an  offer  for  the  sale 
of  land.  Here,  assuming  that  the  company  has  notice 
of  the  importance  of  the  message,  under  the  rule  else- 
where considered,1  the  measure  of  damages  is  the  dif- 
ference between  the  price  at  which  the  property  was 
offered,  and  its  actual  market  value  at  the  time 
when  the  telegram  accepting  the  offer  should  have 
been  delivered.2  It  is  perhaps  merely  another  way 
of  stating  this  rule,  to  say  that  the  measure  of  dam- 
ages for  a  breach  of  contract  by  a  telegraph  com- 
pany to  transmit  a  message  which,  if  duly  delivered, 
would  have  completed  a  contract  for  the  sale  of 
goods,  is  the  profits  which  plaintiff  would  have  ac- 
quired had  the  contract  of  sale  been  perfected.3 

§  344.  Illustration:  Loss  of  Weight  of  Cattle. — 
Where  a  sale  has  been  made  of  cattle  for.  future  de- 
livery, at  the  option  of  the  purchaser,  the  purchaser 
sent  a  dispatch  notifying  the  seller  that  he  would 
take  the  stock  in  the  morning  of  the  next  day,  in 
accordance  with  a  custom  among  stock-dealers  to 
take  and  weigh  cattle  at  early  daylight.  Owing  to 
the  failure  of  the  telegraph  company  promptly  to 
deliver  the  dispatch,  the  weighing  of  the  cattle  was 
delayed,  and    their  weight   decreased,   it  was  held 


in  Kiley  v.  Western  Union  Tel.  Co.,  39  Hun  (X.  Y.),  158,  163. 
There  are  Canadian  holdings  to  the  effect  that,  if  no  contract  would  be 
completed  by  the  telegram,  which  the  plaintiff  could  enforce,  he  cannot 
recover  substantial  damages  for  the  negligence  of  the  company  in  the 
transmission  of  his  message.  Kinghorne  v.  Montreal  Tel.  Co.,  18  Up. 
Can.  (Q.  B.)  60;  Beaupre  v.  Pacific  Tel.  Co.,  21  Minn.  155.  But  see 
Western  Union  Tel.  Co.  v.  Hopkins,  4!>  Ind.  -I'll.  But  cases  cited  in 
this  and  the  preceding  sections  show  that  thi~  cannot  be  affirmed  as  an 
universal  principle. 

1  Ante.  §  313,  et  seq. 

2  Alexander  v.  Western  Union  Tel.  Co.,  <J7  Miss.  386;  3.  C,  3  L.  R.  A. 
71 ;  S  South.  Rep.  397,— semble. 

Western  Union  Tel.  I  !o.  v.  Way,  83  Ala.  542;  -.  c,  I  South.  Rep.  344. 


340        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

that  the  compan}'  was  liable   to  the  seller  for  such 
loss  of  weight.1 

§  345.  View  that  Rule  is  Inapplicable  where  Ob- 
ject is  Speculation. — But  this  rule  has  been  held  not 
to  apply  where  the  object  of  the  sender  of  the  mes- 
sage was  simply  to  purchase  and  then  resell  on  a 
rising  market, —  in  other  words,  where  a  mere 
speculation,  and  not  an  ordinary  mercantile  trans- 
action, was  intended.  The  following  case  was  ruled 
by  this  principle  :  A  telegraph  company  delayed 
in  transmitting  a  message  directing  the  purchase  of 
oil  in  open  market.  When  the  message  was  re- 
ceived oil  had  gone  up,  so  that  no  purchase  was 
made.  If  the  message  had  been  received  promptly, 
and  if  the  oil  had  been  bought  at  once,  and  if  it 
had  been  sold  on  the  rising  market,  there  would 
have  been  a  profit ;  but  on  the  trial  of  the  action 
against  the  telegraph  company,  it  did  not  appear 
that  the  oil  would  have  been  resold  at  that  time 
if  it  had  been  bought.  In  other  words,  the  evidence 
did  not  develop  the  third  if  into  a  reasonable  cer- 
tainty. The  court  accordingly  held  that  no  more 
than  nominal  damages  could  be  recovered.'2  It  may 
be  difficult  to  distinguish  this  case  on  principle  from 
the  cases  previously  cited  in  this  paragraph,  or 
from  the  case  where  a  merchant  who  deals  in  a 
certain  commodity,  orders  it  when  the  market  is 
low,  and,  in  consequence  of  the  failure  of  the  com- 
pany seasonably  to  deliver  his  message,  he  is 
obliged  to  buy  it  after  the  market  has  advanced. 
Whether  an}''  difference  in  law  or  in  sense  can  be 

1  Hadley    v.    Western  Union  Tel.  Co.,  115  Iud.  191;   s.  C,  21    Am. 
&  Eng.  Corp.  Cas.  72;  15  N.  E.  Rep.  S45;  13  West.  Rep.  405. 

2  Western  Union  Tel.  Co.  v.  Hall,  121  U.  S.  444;  s.  c,  8  S.  E.  Rep. 
577. 


LOSS    OF    PROFITS.  341 

drawn  between  what  is  called  "speculating"  and 
what  is  called  "merchandising,"  where  in  the 
former  case,  an  actual  purchase  and  resale  are  in- 
tended, and  not  a  mere  fictitious  purchase — a  betting 
on  the  state  of  the  market, — may  be  doubted.  In 
both  cases  first  supposed,  the  purchaser  buys  for  the 
purpose  of  reselling  at  a  profit,  as  any  man  may 
lawfully  do. 

§  346.      Loss  of  Certain  Profits  Recoverable  :     Loss 
of  Uncertain  and  Contingent  Profits  Not. — If    we   are 

right  in  the  three  propositions  already  advanced,  we 
may  conclude  that  evidence  that,  in  actions  against 
telegraph  companies  for  mistakes  or  delays  in  trans- 
mitting and  delivering  messages,  the  loss  of  profits 
on  intended  transactions,  which  might  or  might 
not  have  been  realized  according  to  contingencies, 
are  not  recoverable.  It  would  be  profitless  to  en- 
large upon  the  reasons  which  have  been  advanced 
by  judges  and  law  writers  for  this  rule.  It  is  simply 
a  branch  of  the  rule  that  the  law  does  not 
regard  remote  and  problematical  consequences  of 
wrongs  or  breaches  of  contract,  nor  award  damages 
for  such  consequences,  the  well  known  maxim 
being  causa  proxima,  non  remota  spectatur.  The 
author,  in  his  work  on  Negligence,  endeavored  to 
analyze  the  cases  in  which  this  subject  is  consid- 
ered, to  look  beyond  the  mere  legal  jargon  in  which 
the  subject  is  obscured,  and  to  discover  and  formu- 
late a  practical  rule ;  and  the  conclusion  arrived  at, 
roughly  stated,  was  that  proximate  cause  means 
probable  cause:  which  means  that  where  one  as- 
sumes an  obligation —  speaking  both  of  cases  ex 
contractu  and  ex  delicto — the  law  makes  him  an- 
swerable in  damages  for  those  consequences  which, 


342        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

to  a  reasonable  man  in  his  situation  and  with  the 
knowledge  which  he  possessed,  would,  in  conformity 
with  the  teachings  of  experience,  be  regarded  as 
likely  to  flow  from  his  failure  to  perform  the  con- 
tractual obligation  assumed,  or  from  the  wrongful 
act  of  omission.1  And  here  the  law  proceeds  in 
strict  accordance  with  sound  morals;  for  it  is  mor- 
alhy  right  that  the  tort-feasor  or  the  contract-breaker 
should  be  answerable  in  damages  for  those  conse- 
quences of  his  actor  default  which  a  reasonable  man 
in  his  situation,  and  possessing  his  means  of  knowl- 
edge, ought  to  foresee;  and,  on  the  other  hand,  it  is 
morally  wrong  to  hold  such  a  person  responsible  for 
those  consequences  which  a  reasonable  man  in  his 
situation,  and  possessing  his  means  of  knowledge, 
would  not  have  foreseen — since  it  would  be  too  se- 
vere to  visit  men  with  responsibility  for  remote  and 
improbable  consequences  of  their  conduct;  the  race 
of  life,  hazardous  at  best,  would  be  run  surrounded 
with  hazards  greater  than  frail  human  nature  could 
beai*.  It  would  be  a  continual  gauntlet.  No  bound- 
aries could  be  set  to  the  liability  which  might  attach 
from  mere  mistakes  and  inadvertent  acts.  The  law 
would  have  no  line  by  which  to  trace  such  a  boundary, 
and  no  scales  by  which  to  weigh  damages.  Litiga- 
tion would  be  endless,  and  society  would  be  forever 
set  by  the  ears. 

§  347.  Application  of  this  Principle. — Applying 
the  foregoing  principles,  it  may  be  stated  with  con- 
fidence that  the  damages  recoverable  for  the  breach 
of  contract  include  profits  which  the  plaintiff  certainly 
would  have  realized,  but  for  the  defendant's  default, 

i  2  Thomp.  Neg.  1084. 


LOSS    OF    PROFITS.  343 

but  do  not  include  speculative  .or  contingent  profits.1 
The  word  "certainty,"  as  here  used,  is  not  intended 
to  be  understood  in  an  absolute  sense,  but  rather  as 
denoting  a  high  degree  of  moral 'probability;  and,  in 
the  view  of  many  decisions,  it  might  be  more  ac- 
curate to  substitute  the  word  "probably"  for  the 
word  "  certainly."  But,  on  the  other  hand,  it  is  a 
sound  implication  from  the  rule,  as  applied  to  the 
subject  which  we  are  considering,  that  where  the 
dispatch  merely  conveys  information  to  the  plaintiff, 
and  is  not  delivered  to  him,  damages  are  not  recov- 
erable by  him  on  evidence  of  what  he  would  have 
done,  as  a  reasonable  man,  in  order  to  protect  him- 
self from  certain  changes  in  the  ■market,  in  case  he 
had  received  the  information.2  On  the  other  hand, 
it  is  too  plain  for  discussion  that  no  damages  can  be 
recovered  in  such  an  action  based  upon  the  loss  of 
such  problematical  gains  as  the  prizes  which  the 
plaintiff's  Jiorse  would  win  at  a  trotting  race.3 

§  348.  illustrations  of  it. — A  person  telegraphed 
his  agents:  "Ship  oil  soon  as  possible,  at  very  best 
rates  yon  can."  It  seems  that  the  message  was 
transmitted  over  the  wire  to  the  office  to  which  it 
was  directed,  but,  by  reason  of  the  negligence  of  an 
employee  of  the  company,  it  was  not  delivered. 
The  agents  did  not  ship  the  oil  at  the  time  they 
would  have  done  if  the  message  had  been  delivered, 
and  the  plaintiff  alleged  that,  by  reason  thereof,  he 
was  compelled  to  pay  higher  rates  of  freight  on  the  oil, 
and  also  that  he  lost  great  profits  by  the  delay  thus 

■Griffin   v.  Colver,  10  X.  Y.  489;  s.  c,  10  Am.  Dec.  718.     See   the 
learned  note  on  loss  of  profits  as  damages,  10  Am.  Dec.  725. 

2  Smith  v.  Western  Union  Tel.  Co.,  S3  Ky.  104;  s.  C,  4  Am.  St.  Kep. 
120. 

3  Western  Union  Tel.  Co.  v.  Crall,  39  Kan.  580;  3.C.,  18  Pae.  Rep.  71ft. 


344        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

caused  in  not  shipping  the  oil.  The  court  held  that 
the  plaintiff  was  entitled  to  recover  the  money  he 
paid  the  company  for  transmitting  the  message,  also 
the  increased  price  of  freight  he  was  required  to 
pay,  and  all  expenses  incurred  by  reason  of  the  fail- 
ure of  the  defendants  to  fulfill  the  contract  to  de- 
liver the  message;  but  that  he  was  not  entitled  to 
recover  for  profits  he  might  have  made,  had  the  mes- 
sage been  delivered  and  the  oil  sent,  because  the 
rule  of  damages  excludes  uncertain  and  contingent 
profits,  such  as  are  not  the  immediate  and  necessary 
result  of  the  breach  of  contract,  and  which  may 
not  be  fairly  supposed  to  have  entered  into  the  con- 
templation of  the  parties  when  the}7  made  it,  and  are 
not  capable  of  being  definitely  ascertained  by  refer- 
ence to  establish  market  rates.1  So,  where  a  per- 
son telegraphed,  accepting  an  offer  made  him  to  sell 
him  certain  hogs,  and,  by  the  negligence  of  the 
agents  of  the  telegraph  company,  the  message  was 
not  delivered,  and  the  owner  disposed  of  the  hogs 
to  another  buyer,  it  was  held,  in  an  action  against 
the  telegraph  company,  that  the  sender  of  the  mes- 
sage might  recover  the  additional  sum  which  he 
would  have  been  compelled  to  pay  at  the  same  place 
in  order  to  purchase  the  same  number  of  hogs,  but 
that  he  could  not  recover  for  the  loss  of  possible 
profits  which  he  might  have  made  had  he  obtained 
the  hogs.2  A  similar  case  was  where  the  plaintiff 
received  a  telegram  from  a  firm  in  Baltimore,  offer- 
ing to  sell  them  a  cargo  of  corn  at  ninety  cents  per 
bushel.  Whereupon,  one  of  the  plaintiffs,  who  was 
also  a  member  of  a  firm,  wrote  out  a  telegram,  which 

1  Western  Union  Tel.  Co.  v.  Graham,  1  Colo.  230;  s.  c,  9  Am.  Rep. 
136. 

2  Squire  v.  Western  Union  Tel  Co.,  9S  Mass.  232. 

f 


LOSS    OF    PEOFITS.  345 

he  delivered  to  the  defendants,  and  paid  them  for 
transmitting  it  to  Baltimore.  It  read  as  follows: 
"Ship  cargo  named  at  ninety;  if  yon  can  secure 
freight  at  ten,  wire  us  result."  This  message  was 
sent,  but  not  delivered,  whereby  the  plaintiffs  failed 
to  obtain  the  corn  at  the  terms  offered,  and  the  price 
of  corn  and.  freight  immediately  advanced.  The 
court  held  that  the  sum  which  would  be  a  compen- 
sation for  the  direct  loss  sustained  by  the  non-de- 
livery of  the  message  would  be  the  difference  be- 
tween the  ninety  cents  and  the  sum  which  the  plaint- 
iff would  have  been  compelled  to  pay  at  the  same 
place,  in  order,  b}^  due  and  reasonable  diligence, 
after  notice  of  the  failure  of  the  telegram,  to  pur- 
chase the  like  quantity  and  quality  of  the  same 
species  of  merchandise;  and  that  the  same  rule  ap- 
plied to  any  increase  of  freight  from  the  sum  named, 
it  having  been  shown  that  the  corn  could  have  been 
shipped  by  the  sellers  at  the  rate  mentioned  in  the 
telegram.1  In  a  Canadian  case,2  it  appeared  that 
the  plaintiff,  a  ship-owner,  sent  a  message  to 
Chatham,  inquiring  if  the  person  to  whom  it  was 
addressed  could  load  his  vessel  with  eight  thousand 
bushels  of  wheat.  Through  an  error  of  the  tele- 
graph company,  the  message,  as  received,  read: 
"Three  thousand,"  instead  of  "  eight  thousand," 
and  he  received  an  affirmative  reply.  Whereupon 
he  abandoned  a  contract  for  a  cargo  from  Detroit, 
and  sent  his  vessel  to  Chatham,  where  he  could 
only  obtain  a  load  of  three  thousand  bushels,  with 
which  he  sailed.  In  an  action  against  the  telegraph 
company,  it  was  held  that  the  damages  which  natu- 
rally resulted  from  the  defendant's  breach   of  duty 

1  True  v.  International  Tel.  Co.,  60  Me.  9. 

2  Lane  v.  Montreal  Tel.  Co.,  7  Upper  <  lanada  < '.  1'.  i::. 


346        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

were  the  expenses  of  sending  the  vessel  to  Chatham 
and  back,  and  that  the  plaintiff  was  not  entitled  to 
recover  the  profit  he  might  have  made  from  carrying 
eight  thousand  bushels.1 

§  349.  Further  illustrations. — So,  where  a  tele- 
graph company,  through  negligence,  failed  to  trans- 
mit and  deliver  a  telegram  in  these  words  :  "  Get 
$10,000  of  the  mail  company,"  it  was  held  that  the 
sender  could  not  recover  as  damages  the  loss  of  com- 
missions upon  a  purchase  which  he  ivonld  have  made 
if  the  telegram  had  been  delivered,  or  a  penalty 
which,  by  the  terms  of  the  contract,  he  was  obliged 
to  pay  in  consequence  of  the  failure  to  make  the  pur- 
chase, the  reason  being  that  the  defendants  were 
not  to  be  held  liable  for  damages  arising  from  trans- 
actions, notice  of  which  could  not  be  derived  from 
the  terms  of  the  dispatch  itself.2  A  most  apt  illus- 
tration of  the  principle  is  found  in  a  case  where  the 

1  See  also  Breese  v.  United  States  Tel.  Co.,  45  Barb.  275 ;  s.  c,  affirmed, 
48  N.  Y.  132;  S  Am.  Rep.  526;  Hubbard  v.  Western  Union  Tel.  Co., 
33  Wis.  558. 

2  Landsberger  v.  Magnetic  Tel.  Co.,  32  Barb.  (N.  Y.)  530.  In  Shields 
v.  Washington  Tel.  Co.,  9  West.  L.  J.  233  (anno  1S52),  which  was  a  case 
at  nisi  prius,  the  telegram  as  received  for  transmission  was  in  these 
words:  "Oats  56,  bran  $1.10,  corn  73,  hay  25."  As  delivered,  the  word 
sixty- six  was  substituted  for  fifty-six.  No  explanation  of  the  meaning 
of  the  telegram  had  been  made  to  the  telegraph  company.  It  was  held 
that  the  measure  of  damages  was  simply  the  price  paid  for  transmitting 
the  telegram.  But  in  Bowen  v.  Lake  Erie  Tel.  Co.,  1  Am.  L.  Reg.  685, 
a  telegram  was  addressed  to  the  plaintiffs,  who  were  merchants.  When 
delivered  to  the  telegraph  company  for  transmission  it  ran  as  follows  : 
"Send  one  handsome  $8.00  blue  and  orange. "  As  delivered  it  read  as 
follows:  "Send  one  hundred  $8.00 blue  and  orange."'  The  plaintiffs  ac- 
cordingly sent  one  hundred  shawls  of  that  description  to  the  signer  of 
the  message,  who  returned  them  to  the  plaintiffs.  In  trie  meantime  the 
season  for  the  sale  of  shawls  had  closed  and  they  had  depreciated  in 
value.  It  was  held  (in  submitting  the  case  to  the  jury),  that  the  plaint- 
iffs might  recover  for  the  loss.  It  is  to  be  observed  that,  in  tbis  case,  the 
message,  on  its  face,  conveyed  to  the  company  information  of  the  value 
which  was  to  be  paid  for  the  articles  sent  for. 


LOSS    OF    PROFITS.  347 

message  was  sent  by  the  plaintiff,  directed  to  his 
agent,  requiring  the  agent  to  buy  a  certain  quantity 
of  wheat  to  be  delivered  at  seller's  option,  and  the 
message  was  not  delivered  by  the  company,  and  the 
price  of  wheat  fluctuated  during  the  month  of  June*, 
but  was,  at  the  close  of  the  month,  less  than  on  the 
day  when  the  message  should  have  been  delivered. 
It  was  held  that,  as  the  court  could  not  presume  that 
the  plaintiff  would  have  sold  at  the  right  time  to  make 
a  profit,  had  the  wheat  been  purchased  by  the  agent 
in  pursuance  of  the  telegram,  the  plaintiff  was, 
therefore,  entitled  to  no  more  than  nominal  damages.1 
§  350.  Further  illustrations. — In  general,  it  may 
be  said  that  where  the  damage  claimed  is  a  loss  of 
that  which  might  have  been  obtained,  depending  on 
the  contingency  of  a  certain  expected  action  in  a  third 
person,  in  the  event  of  a  depending  contract  being 
carried  out,  it  is  too  remote  to  be  regarded  as  within 
the  contemplation  of  the  party  breaking  the  con- 
tract. Thus,  where  the  dispatch  was:  "Can  close 
Valkyria  and  Othere,  twenty-two,  twenty  net,  Mon- 
treal. Answer  immediately,"  and  the  subject  of 
the  dispatch  was  the  chartering  for  the  person  ad- 
dressed of  two  vessels  named  Valkyria  and  Othere, 
it  was  held  that  the  commissions  which  the  sender 
of  the  dispatch  would  have  earned  as  a  broker  in  ef- 
fecting a  charter  of  the  two  vessels  if  the  message 
had  been  duly  transmitted,  were  not  damages,  either 
actually  contemplated,  or  to  be  fairly   supposed  to 

1  Hubbard  v.  Western  Union  Tel.  Co.,  33  Wis.  55S;  s.  C,  14  Am.  Rep. 
775.  Compare  Williams  v.  Reynolds,  18  Eng.  Com.  Law,  493;  s.  C,  13 
Weekly  Rep.  940;  Shepard  v.  Milwaukee  Gas-Light  Co.,  15  Wis.  318; 
Richardson  v.  Chinoweth,  26  Wis.  656;  Havermyer  v.  Cunningham,  35 
Barb.  (N.  Y.)  515;  Hamilton  v.  Ganyard,  34  Barb.  (N.  Y.)  204,  caaee 
following  and  applying,  in  various  states  of  fact,  the  rule  of  Eadley  v. 
Baxendale,  9  Exch.  341. 


348        ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

have  been  contemplated  by  the  telegraph  company, 
and  were,  therefore,  not  recoverable.1  So,  it  has 
been  held  that  a  declaration  in  an  action  against  a 
telegraph  company  alleging  that,  by  the  negligence 
of  the  compan}-,  a  message  directing  plaintiff  to 
meet  the  sender  on  the  arrival  of  a  certain  railroad 
train,  prepared  to  render  services  specified,  was  de- 
livered too  late  for  him  to  meet  the  train,  whereby 
he  lost  profits  which  he  would  have  made  from  such 
services,  is  bad  on  demurrer,  for  the  reason  that  no 
right  to  recover  damages  is  shown,  the  making  of 
such  profits  being  mere  possibility  * 

§  351.  A  Modified  Holding. — Another  court  has 
held  that  if,  through  the  negligence  of  a  telegraph 
company,  a  message  directing  the  purchase  of  1,000 
shares  of  specified  stock  for  the  sender,  is  so  missent 
as  to  read  100  shares,  and  if,  in  consequence  of  such 
mistake  onhr  100  shares  are  bought,  and  there  is  a 
rise  in  the  market  value  of  such  stocks,  both  before 
and  after  the  sender  received  notice  of  the  mistake, 
the  sender  can  recover  of  the  compan}^  as  damages, 
only  the  difference  in  the  cost  of  900  shares  of  the 
specified  stock  at  the  time  the  100  shares  were  pur- 
chased, and  their  cost  at  such  time,  after  notice  of 
the  mistake,  as  he  could,  with  due  diligence,  have 
secured  their  purchase.3 

§  352.  Loss  of  Profits  on  Intended,  but  not  Com- 
pleted Contracts. — There  is  judicial  authority  for  the 
proposition  that  where,  in  an  action  against  a  tele- 
graph company  for  a  failure  to  transmit  a  message, 
it  is  sought  to  recover   damages  for  losses  of  profits 

1  McColl  v.  Western  Union  Tel.  Co..  44  N.  Y.  Super.  487;  s.  c,  7  Abb 
X.  C.  151. 

2  Clay  v.  Western  Union  Tel.  Co.,  SI  Ga.  285;  s.  c,  6  S.  E.  Rep.  S13. 
:  Marr  v.  Western  Union  Tel.  Co.,  85  Tenn.  529. 


LOSS    OF    PROFITS.  349 

which,  it  is  alleged,  would  have  been  made  upon  a 
contract  which  the  message  was  designed  to  com- 
plete, it  must  appear  that  the  delivery  of  such  mes- 
sage to  the  party  to  whom  it  was  directed  would 
have  effected  a  valid  and  binding  contract.  Thus, 
where  the  plaintiffs,  merchants  in  St.  Paul,  wrote  to 
a  wholesale  dealer  in  pork  in  Dubuque:  "Have  you 
any  more  northwestern  pork,  or  prime  mess;  also, 
extra  mess?  Telegraph  price  on  receipt  of  this;" 
and  received  in  reply  a  telegram  in  these  words  : 
"Letter  received.  No  light  mess  here.  Extra  mess, 
twenty-eight  seventy-five;"  and,  thereupon,  the 
plaintiff  delivered  to  the  defendants,  a  telegraph 
company,  for  transmission,  the  following  message, 
which  the  defendants  undertook  to  transmit  and  de- 
liver to  the  wholesale  pork-dealer  in  Dubuque: 
"Dispatch  received.  Will  take  two  hundred  extra 
mess,  price  named;"  which  dispatch,  on  account  of 
the  negligence  of  the  telegraph  company,  was  not 
delivered  for  several  days  afterwards,  and  in  the 
meantime  pork  had  gone  up  in  price;  it  was  held 
that  the  telegram  from  Dubuque  did  not  purport  to 
be  an  offer  to  sell  any  quantity  of  pork,  nor  was  the 
plaintiffs'  message  an  acceptance  of  any  offer;  that 
the  seasonable  delivery  of  the  plaintiffs'  message 
would  not  have  effected  any  contract  binding  on  the 
party  in  Dubuque  to  deliver  any  definite  quantity  of 
pork;  that  the  plaintiffs'  message  was  merely  an 
order  for  two  hundred  barrels  of  pork  at  the  price 
named,  and,  until  its  acceptance,  no  contract  would 
exist  between  the  parties;  and  that,  therefore,  no 
damages  could  be  allowed,  based  upon  the  advance 
in  the  price  of  pork  during  the  time  the  message 


350        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

was  delayed.1  So,  in  a  case  in  Canada,  it  appeared 
that  the  plaintiff  received  a  telegram:  "Will  give 
you  eighty  cents  for  rye."  He  sent  a  telegram  in 
reply.  "Do  accept  your  offer;  ship  to-morrow  fif- 
teen or  twenty  hundred."  In  an  action  brought 
against  the  telegraph  company  for  negligence  in  not 
transmitting  the  latter  message,  it  was  held  that  no 
damages  for  the  loss  of  a  sale  of  rye  could  be  recov- 
ered; because,  even  if  the  telegram  had  been  duly 
transmitted  and  delivered,  there  would  have  been 
no  complete  contract  binding  the  purchaser  to  take 
any  particular  quantity  of  rye,  and  that  parol  evi- 
dence to  show  that  the  purchaser  would  have  taken 
a  certain  quantity  was  immaterial.2  As  already  sug- 
gested,3 the  theory  of  this  decision,  though  possibly 
sound  in  its  application  to  the  facts  in  judgment,  is 
not  borne  out  by  the  mass  of  decided  cases. 

§  353.  No  Damages  under  Illegal  Contracts — Op- 
tion Deals. — Contracts  for  fictitious  or  option  "fu- 
tures," made  in  Georgia,  being  illegal  whether  be- 
tween principal  and  principal,  or  broker  and  prin- 
pal,  where  both  parties  are  in  complicity  touching 
the  unlawful  purpose,  such  contracts,  or  the  loss  or 
gain  resulting  from  them,  cannot  be  invoked  to 
measure  the  damages  sustained  by  the  sender  of  a 
telegram  in  consequence  of  a  mistake  made  by  the 
telegraph  company  in  transmitting  the  message.4 

1  Beaupre  v.  Pacific,  etc.,  Tel.  Co.,  21  Minn.  1  .">:>. 
-  2  Kinghorne  v.  Montreal  Tel.  Co.,  IS  Upper  Canada,  Q.  B.  GO. 

'■'■  Ante,  §  335  et  seq. 

4  Cothran  v.  Western  Union  Tel.  Co.,  S3  Ga.  25;  s.  C,  9  S.  E.  Rep. 
836;  25  Am.  &  Eng.  Corp.  Cas.  533  [(overruling  Telegraph  Co.  v. 
Blanchard;  6S  Ga.  299). 


CIPHER    DISPATCHES.  351 


Article  IV.— CIPHER    AND    UNINTELLIGIBLE    DIS- 
PATCHES. 

Section. 

357.  Application  of  the  Rule  in  Hadley  v.  Baxendale  to  Unintelli- 

gible Dispatches. 

358.  In  Case  of  Cipher  or  Unintelligible  Messages,  Nominal  Damages 

Only. 

359.  Reasons  Adduced  in  Support  of  this  Rule. 

360.  Rule  Applicable   to   Unintelligible   Dispatches,  though  not  in 

Cipher. 

361.  An  English  Case  Illustrating  the  Rule. 

362.  A  Canadian  Case  Illustrating  the  Rule. 

363.  American  Cases  Illustrating  It. 

364.  Extrinsic  Information  of  the  Importance  of  the  Message. 

365.  Sufficient  that  the  Company  is  Put  upon  Inquiry. 

366.  General  Information  Sufficient. 

367.  Instances  of  Dispatches  Sufficiently  Disclosing  the  Nature  and 

Importance  of  the  Transaction. 
36S.     Further  Illustration. 

369.  Xo  Distinction  Between  Non-Delivery  and  Mistake. 

370.  Stipulation  in  Message  Blanks  as  to  Cipher  or  Obscure  Mes- 

sages. 

371.  Stipulation  as  to  Repeating,  in   its  Application  to  Cipher  Dis- 

patches. 

372.  Cases  which  Deny  that  there  is  Any  Distinction  Between  Cipher 

and  Other  Dispatches  in  Respect  of  the  Measure  of  Damages. 

:!73.     Exemplary   Damages  for  the  Non-Delivery  of    Cipher    Dis- 
patches. 

374.     Unintelligible  Dispatches  Subject  to  Parol  Explanation. 

:!7">.     Evidence  that  Agent  had  Information  of  Nature  of  Message. 

^  351  .  Application  of  the  Rule  of  Hadley  v.  Bax- 
endale to  Unintelligible  Dispatches. —  Recurring  now 
to  the  rule  of  damages  laid  down  in  Hadley  v.  Bax 


352        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

i  i/tJale,1  that  the  damages  to  be  given  in  such  cases 
are  "  such  as  may  reasonably  be  supposed  to  have 
been  in  the  contemplation  of  both  parties  at  the 
time  they  made  the  contract;"  or  to  the  interpre- 
tation put  upon  the  rule  by  an  American  court," 
"  that  the  party  is  liable  for  all  the  direct  damages 
which  both  parties  to  the  contract  would  have  con- 
templated as  flowing  from  its  breach,  if,  at  the  time 
when  they  entered  into  it,  they  had  bestowed  proper 
attention  upon  the  subject,  and  had  been  fully  in- 
formed as  to  the  facts," — it  must  be  concluded  that 
the  knowledge  which  the  sender  of  the  dispatch  and 
the  agent  of  the  telegraph  company  who  received 
it  had  at  the  time  when  it  was  received  for  trans- 
mission, is  a  most  important  element  in  estimating 
the  damages  to  be  given  in  the  case  of  a  failure  to 
transmit  it  properly  and  seasonably.  As  the  sender 
of  the  message  may  be  supposed  to  possess  such 
knowledge  on  the  subject,  the  question  generally 
takes  the  form  of  considering  what  was  the  knowl- 
edge or  means  of  knowledge  of  the  telegraph 
company. 

§  358.  In  Case  of  Cipher  or  Unintelligible  Mes- 
sages, Nominal  Damages  Only. — The  weight  of  au- 
thority, and  especially  the  decisions  in  England 
and  the  commercial  States  of  the  Union,  are  to  the 
effect  that,  where  a  dispatch  is  delivered  to  a  tele- 
graph company  in  cipher,  or  where  it  is  couched  in 
such  language  as  does  not  disclose  its  import  to  the 
agent  of  the  company  who  receives  it  for  trans- 
mission, and  he  is  not  otherwise  advised  -of  its 
import,   or   advised   of  any   special   circumstances 


1  Ante,  §  311. 

2  Ante,  §  312. 


CIPHER    DISPATCHES.  353 

which  will  entail  loss  in  case  it  is  not  correctly  and 
seasonably  delivered,  the  company  will  be  liable  in 
case  of  default  in  transmitting  it  correctly,  or  in 
case  of  negligent  delay  in  its  delivery,  or  in  case  of 
an  entire  failure  to  deliver  it, — to  pay  nominal  dam- 
ages only,  or,  at  most,  the  sum  paid  by  the  sender 
for  transmitting  it.1 

§  359.  Reasons  Adduced  in  Support  of  this  Rule. — 
If  we  were  to  expand  upon  the  reasons  which  have 
been  given  by  the  judges  for  this  rule,  we  should  not 
find  any  more  satisfactory  ones  than  those  given  in 
some  of  the  cases  from  which  we  have  already 
quoted.  It  is  difficult  to  see  how  any  one  can  ex- 
amine impartially  the  judicial  opinions  in  which 
those  reasons  have  been  unfolded,  without  coming 
to  the  conclusion  that  the  judges  have  done  most 
of  their  thinking  on  the  side  of  the  telegraph  com- 
panies, and    very  little    on    the  side    of  their  cus- 

1  Sanders  v.  Stuart,  1  C.  P.  Div.  326;  s.  c,  sub  nom.  Saun- 
ders v.  Stewart,  35  L.  T.  (N".  S.)  370;  Moak  Eng.  Rep.  2S6; 
Western  Union  Tel.  Co.  v.  Martin,  9  Bradw.  (111.)  587;  Beaupre 
v.  Pacific,  etc.  Tel.  Co.,  21  Minn.  155;  Mackay  v.  Western  Union 
Tel.  Co.,  16  Xev.  222;  Daniel  v.  Western  Union  Tel.  Co.,  61 
Tex.  452;  s.  c,  48  Am.  Rep.  305;  Candee  v.  Western  Union  Tel.  Co., 
34  Wis.  471 ;  s.  C,  17  Am.  Rep.  452;  Cannon  v.  Western  Uniou  Tel.  Co., 
100  N.  C.  300;  s.  C,  6  Am.  St.  Rep.  590;  Hart  v.  Western  Union  Tel. 
Co.,  66  Cal.  579  (divided  court);  Abeles  v.  Western  Union  Tel.  Co.,  37 
Mo.  App.  554;  Baldwin  v.  Western  Union  Tel.  Co.,  45  X.  Y.  744  (reversing 
s.  c.,54  Barb.  (N.  Y.)  505;  6  Abb.  Pr.  (N.  S.)  405;  1  Lans.  (X.  Y.)  125; 
Belun  v.  Western  Union  Tel.  Co.,  7  Reporter,  710;  S.  C,  8  Cent.  L.  J. 
445;  11  Ch.  Leg.  N.  276;  Landsberger  v.  Magnetic  Tel.  Co.,  32  Barb. 
(N.  Y.)  530;  Kingborne  v.  Montreal  Tel.  Co.,  18  Up.  Can.  Q.  B.  60; 
Shields  v.  Washington  Tel.  Co.,  9  West.  L.  J.  5  (nisiprius  ease) ;  United 
States  Tel.  Co.  v.  Gildersleve,  29  Md.  232;  s.  c,  96  Am.  Dec.  519; 
Home  v.  Midland  R.  Co.,  L.  R.  7  C.  P.  583  (commented  on  in  Wood's 
Mayne  on  Damages,  §  34);  Western  Union  Tel.  Co.  v.  Ktrkpatrick,  76 
Tex.  217;  s.  c.,  13  S.  W.  Rep.  70;  McColl  v.  Western  Union  Tel.  Co., 
7  Abb.  N.  Cas.  (X.  Y.)  151;  Benin  v.  Western  Uniou  Tel.  Co.,  8  Biss. 
(U.  S.)  131.  American  cases  on  this  subject  are  collected  in  a  note  in 
21  Am.  &  Eng.  Corp.  Cas.  131. 

(23) 


354       ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

tomers.  One  court  has  reasoned  that,  in  order  to 
make  a  telegraph  company  liable  for  the  ulterior  or 
remote  consequences  of  its  failure  properly  to  trans- 
mit a  message,  according  to  its*  engagement,  of  the 
importance  of  which  it  is  not  advised  by  what  ap- 
pears on  the  face  of  the  message,  it  is  the  duty  of  the 
sender  to  disclose  to  the  company's  agent  its  mean- 
ing. The  same  court  reasons  that  telegraph  messages 
sent  in  cipher,  the  purport  of  which  is  entirely  un- 
known to  the  officers  or  agents  of  the  company, 
present  a  case  falling  within  the  principle  in  the 
law  of  carriers,  which  exempts  the  carrier  from  re- 
sponsibility on  the  ground  of  concealment  by  the 
owner  of  the  goods,  of  their  nature,  amount  and 
value.1 

§  360.  Rule  Applicable  to  Unintelligible  Dis- 
patcher, though  not  in  Cipher. — The  same  reason,  and 
consequently  the  same  rule,  applies  to  dispatches 
which, though  not  in  cipher,  are  so  framed  as  to  be  un- 
intelligible to  the  agents  of  the  telegraph  company. 
Accordingly,  the  rule  in  Hadley  v.  Baxendale  has 
been  applied  where  the  dispatch  read  :  "  Sell  fifty 
gold,"  and  where  the  real  meaning,  as  understood 
between  the  sender  and  the  person  addressed,  was: 
""Sell  fifty  thousand  dollars  of  gold."  Here  it  was 
held,  in  an  action  for  damages  for  failure  to  trans- 
mit and  deliver  the  above  dispatch,  that  the  trial 
court  erred  in  instructing  the  jury  that  the  plaint- 
iff was  entitled  to  recover  to  the  full  extent  of  his 
loss  by  the  decline  in  gold.  The  court  stated  and 
applied  the  rule  in  Hadley  v.  Baxendale,  and,  speak- 
ing through  Alvey,  J.,  said:    "  If  the   measure    of 


1  Reasoning  of  the  Court  in  Caudee  v.  Western  Union  Tel.  Co.,  34 
Wis.  471 ;  s.  C,  17  Am.  Rep.  452. 


CIPHER    DISPATCHES.  355 

responsibility  at  all  depends  upon  a  knowledge  of 
the  special  circumstances  of  the  ease,  it  would  cer- 
tainly follow  that  the  nature  of  this  dispatch  should 
have  been  communicated  to  the  agent  at  the  time  it 
was  offered  to  be  sent,  in  order  that  the  appellant 
might  have  observed  the  precautions  necessary  to 
guard  itself  against  the  risk."1 

§  361.  An  English  Case  Illustrating-  the  Rule. — 
A  collector  of  telegraphic  messages,  who,  for  reward, 
undertook  to  receive  messages  for  transmission,  and 
to  transmit  them  by  telegraph  to  places  abroad,  re- 
ceived such  a  message  written  in  a  cipher  (which  he 
had  no  means  of  understanding  or  reading),  and 
negligent!}'  transmitted  it  wrongly,  so  that  the  sender 
of  the  message  lost  a  profitable  contract.  It  was 
held  that  only  nominal  damages  could  be  recovered 
by  him  in  an  action  against  such  collector.2 

§  362.  A  Canadian  Case  Illustrating  the  Rule. — 
In  a  case  in  the  Queen's  Bench  of  Upper  Canada,  the 
message  was  as  follows  :  "Kingston,  2d  September, 
1857.  To  Mr.  Crawford,  Oswego  :  Do  accept  your  of- 
fer; ship  to-morrow  fifteen  or  twenty  hundred.  G.  M. 
Kinghorne.''  In  denying  liability  for  substantial  dam- 
ages, Robinson,  C.  J.,  said:  "What  would  the  mes- 
sage of  the  2d  September  have  informed  the  man,  or 
boy  whose  duty  it  was  to  take  it  from  the  wire,  and  to 
send  it  by  another  man  or  boy  to  the  office  of  the 
American  company?  Nothing  but  that  the  plaintiff 
had  accepted  an  offer,  he  could  not  tell  for  what, 
and  would  ship  fifteen  or  twenty  hundred,  whether 
of  staves  or  shingles,  or  barrels  of  flour,  or  bushels 

1  United  States  Tel.  Co.  v.  Gildersleve,  29  Bid.  2:5-2;  s.  c,  96  Am.  Dee. 
519,  527. 

2  Saunders  v.  Stewart.  35  I..  T.  i  N".  SO  ;;",,:  3-  C,  24  W.R.  949;  1  C.  P. 
Div.  320;  45  L.  J.  (C.  P.  Div.)  682. 


356        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

of  grain,  he  could  not  tell;  nor  could  he  guess  what 
might  be  the  occasion  for  haste,  or  the  consequences 
of  delay  or  neglect.  A  possible  loss  or  gain  to  the 
plaintiff,  depending  on  the  time  at  which  the  mes- 
sage would  arrive,  was  a  consequence  which  the  de- 
fendants could  not  appreciate,  and  cannot  be  sup- 
posed to  have  contemplated  at  the  time  they  re- 
ceived the  message."1 

§  363.  American  Cases  Illustrating-  the  Rule. — 
Under  the  operation  of  this  rule,  where  the  company 
was  not  apprised  of  special  circumstances  which 
would  entail  loss,  damages  have  been  denied,  ac- 
cruing through  the  loss  of  an  opportunity  to  charter 
a  vessel;2  or  requesting  the  addressee,  who  was  the 
husband  of  the  sender,  to  come  immediately  to  the 
latter's  father,  who  wTas  very  low, — the  damages  be- 
ing the  loss  sustained  by  a  husband  through  the 
mental  suffering  of  his  wife, — the  message  not  dis- 
closing who  the  person  was  who  was  very  low.3  In 
another  case  it  appeared  that  the  defendants,  a  tele- 
graph company,  through  negligence,  failed  to  trans- 
mit and  deliver  a  telegram  in  these  words:  "  Get 
ten  thousand  dollars  of  the  Mail  Company."  The 
amount  of  damages  allowed  was  the  sum  paid  the 
defendants  for  transmitting  the  message,  and  the 
interest  on  ten  thousand  dollars,  the  receipt  of 
which  by  the  plaintiffs  was  delayed  five  days,  on 
account  of  the  non-delivery  of  the  telegram.  The 
court  sustained  the  decision  of  the  referee  in  the 
case,  who  had  rejected  a  claim  for  damages  for  com- 
missions on   pistols,  to    which  the   plaintiffs  would 

1  Kinghorne  v.  Montreal  Tel.  Co.,  18  Up.  Can.  Q.  B.  GO. 

2  McColl  v.  Western  Union  Tel.  Co.,  7  Abb.  N.  Cas.  (X.  Y.)  151. 

3  Western  Union  Tel.  Co.  v.  Kirkpatrick,  76  Tex.  217;  s.  c,  13  S.  W. 
Rep.  70. 


CIPHER    DISPATCHES.  357 

have  been  entitled  had  the  contract  been  performed, 
and  also  the  amount  of  a  'penalty  which  the  plaint- 
iffs had  to  pay  on  account  of  a  failure  to  perform 
a  contract  which  they  would  have  performed  if  the 
message  had  been  received.  Basing  its  opinion  on 
the  general  rule  as  to  the  measure  of  damages,  the 
court  said:  ''In  receiving  this  message  for  trans- 
mission, the  defendants  had  no  information  what- 
ever in  relation  to  it,  or  the  purposes  to  be  accom- 
plished by  it,  except  what«could  be  derived  from 
the  dispatch  itself.  The  effect  of  any  delay  in  the 
delivery  of  the  dispatch  would  naturally  and  neces- 
sarily be  equal  delay  in  the  receipt  by  the  plaintiffs, 
in  New  York,  of  the  $10,000  therein  mentioned. 
The  defendants  were  not  informed  of  any  special 
use  intended  to  be  made  of  this  sum  of  money,  and 
what  damage  might  naturally  be  expected  to  follow 
from  the  delay  in  the  receipt  of  it.  Clearly,  the 
loss  of  the  use  of  that  sum  during  the  time  that  its 
receipt  was  delayed,  and  the  damages  for  the  loss  of 
such  use,  are,  by  the  laws  of  New  York,  determined 
to  be  the  interest  on  the  money  for  the  period  of 
the  delay,  at  seven  per  cent,  per  annum."1 

§  364.  Extrinsic  Information  of  the  Importance 
of  the  Message. — In  a  case  in  the  New  York  Court 
of  Appeals,2  the  doctrine  is  held,  in  general  terms, 
that  if  a  telegram  does  not  show  upon  its  face  that 
it  relates  to  a  business  transaction,  and  that  a 
pecuniary  loss  may  probably  be  sustained  if  a  mis- 
take is  made  in  transmitting  it,  and  no  notice  to 
this  effect  is  given  to  the  telegraph  company,  the 
company  will  not  be  liable  for  such    loss.      And  the 

1  Landsberger  v.  Magnetic  Tel.  Co.,  32  Barb.  (N.  Y.)  530. 

2  Baldwin  v.  United  States  Tel.  Co.,  45  X.  Y.  741     (reversing  8.  C,  •".  I 
Barb.  505;  G  Abb.  Pr.  (X.  S.)  (N.  V.)  M5;  1  Laos.  (N.  Y.i  125). 


358        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

opinion  was  also  expressed  that  oral  information  of 
the  true  meaning  and  significance  of  a  telegram, 
showing  that  it  does  in  fact  relate  to  a  business  op- 
eration, and  is  of  a  pecuniary  importance,  when  it 
does  not  appear  to  be  of  that  character  upon  its  face, 
will  not  be  sufficient  to  bind  the  company.  But 
there  is,  certainly,  no  rule  of  law  which  lets  in  ex- 
trinsic information  of  the  facts  which  make  the  mes- 
sage specially  important,  and  which  at  the  same  time 
confines  such  information  to  a  written  notice,  though 
it  would  no  doubt  be  competent  for  the  parties  to 
stipulate  that  such  information,  to  be  valid,  should 
be  communicated  in  writing.  The  danger  of  per- 
jury, which  exists  in  this  case,  is  no  greater  than  that 
which  attends  all  important  oral  transactions.  The 
true  rule  undoubtedly  is,  that  telegraph  companies 
are  liable  to  the  extent  of  actual  damages,  within 
tlie  limitations  of  the  rules  elsewhere  discussed,  sus- 
tained through  delay  in  the  transmission  of  the  mes- 
sage, or  through  the  failure  to  transmit  it,  when  the 
importance  of  it  is  manifest  either  by  the  words  of 
the  message,  or  by  explanation  made  at  the  time  it 
is  delivered.1  This  is  well  illustrated  by  a  recent 
case  where  the  plaintiff,  who  had. purchased  a  flock 
of  sheep,  which  he  wished  to  drive  to  his  ranch, 
directed  a  telegram  to  a  servant  to  meet  him  at  a 
certain  place  and  "bring  Shep  "  (meaning  a  sheep 
dog  on  the  ranch).  The  message  was  delivered  so 
as  to  read,  "bring  sheep."  The  servant  accordingly 
drove  the  plaintiff's  sheep  from  the  ranch  to  meet 
him.  In  an  action  for  damages  to  the  newly  pur- 
chased sheep,  for  the  additional  expense  of  keeping 
them,  and  for  loss,  exposure,   and  injury  to   both 

1  Mackay  v.  Western  Union  TeJ.  Co.,  16  Xev.  222,  228.     Compare  Hart 
v.  Direct,  etc.  Tel.  Co.,  86  N.  Y.  G33. 


CIPHER    DISPATCHES.  359 

flocks,  etc.,  plaintiff  in  his  petition  alleged  that 
when  he  sent  the  dispatch  lie  informed  defendant's 
agent  in  charge  of  its  office  that  he  wanted  the  dog 
to  assist  in  driving  the  sheep  to  his  ranch.  It  was 
held  that  this  allegation  implied  that  the  defend- 
ant had  direct  notice  of  the  object  t)f  the  dispatch, 
so  as  to  make  the  company  chargeable  with  the  actual 
damages.1  In  a  case  in  New  York,  later  than  the 
first  above  cited,  the  clerk  or  operator  to  whom  the 
message  was  handed  was  told  of  its  object,  and  that 
it  was  of  great  importance  that  the  party  sending 
it  should  get  a  repty  the  next  day.  It  was  held 
that,  this  being  the  case,  there  was  no  ground  for 
limiting  the  damages  to  the  amount  paid  for  send- 
ing the  message,  as  that  Avas  not  the  only  damage 
that  could  have  been  contemplated  by  the  contract 
between  the  parties.2 

§  365.  Sufficient  that  the  Company  is  put  upon 
inquiry. — There  is  a  principle  in  the  law  relating  to 
notice,  of  constant  application,  that  any  communi- 
cation is  in  law  notice,  which  is  sufficient  to  put  a 
reasonable  prudent  man  upon  inquiry.3  This  prin- 
ciple has  been  frequently  invoked  in  cases  such  as 
we  are  considering,  so  as  to  result  in  the  conclusion 
that,  if  the  language  of  the  dispatch  suggests  its 
nature  and  importance  in  a  general  way,  the  com- 
pany will  be  liable  for  the  actual  damages  accruing 
from  its  failure  to  transmit  it  seasonably  and  cor- 
rectly,— the  courts,  reasoning  that  if  the  company 
desire  fuller  information  as  to  its  nature,  they  must 


1  Western  Union  Tel.  Co.  v.  Edsall,  7-4  Tex.  329;  8.  <'..  li   S.  W.  Rep. 
41. 

2  Sprague  v.  Western  Union  Tel.  Co.,  6  Daly  (X.  Y.),  200. 

3  Lodge  v.  Simonton,  2   Penr.  &  W.  (Pa.)  439;  8.  C,  23  Am.  Dec.  36, 
and  note  23  Am.  Dec.  47. 


360        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

seek  it  or  be  charged  with  the  consequences  of  all 
knowledge  which  such  inquiries  would  have  elicited.1 
In  a  case  in  the  Commission  of  Appeals  of  New 
York  it  was  said  by  Mr.  Commissioner  Earl:  "If 
the  defendant's  agents  did  not  understand  the  im- 
portance or  import  of  the  message,  they  could  have 
inquired  of  the  plaintiff,  and  hence,  for  all  the  pur- 
poses of  this  action,  it  must  be  treated  as  fully 
understanding  the  message,  and  the  consequences 
which  would  result  from  its  erroneous  transmission." 
This  was  said  of  a  message,  not  in  cipher,  which 
ordered  the  sale  of  certain  stocks,  and  which  was, 
therefore,  of  a  character  to  advise  the  agents  of  the 
telegraph  company,  in  a  general  way,  of  its  nature 
and  importance.2  And  there  is  recent  judicial  au- 
thority for  the  conclusion  that  the  company  is 
chargeable  with  notice  of  the  meaning  and  impor- 
tance of  the  message,  where,  from  previous  transac- 
tion*, or  its  habit  of  sending  messages  couched  in 
similar  language,  it  might,  by  reasonable  diligence, 
have  understood  it.3  It  would  seem  to  be  a  reasona- 
ble conclusion  that,  if,  from  his  course  of  dealing 
with  the  sender  of  the  message,  or  from  his  position 
as  the  receiver  of  messages  of  like  character,  the 
company's  agent  ought  to  have  In  own  its  meaning 
or  its  importance,  although  it  might  have  been  un- 
intelligible to  the  general  public,  the  company 
should  not  be  heard  to  say  that  it  was  unintelligi- 
ble, or  apparently  unimportant.  The  forms  of  ex- 
pression used  in  telegraphing  orders  for,  or  commu- 

1  Western  Union  Tel.  Co.  v.  Edsall,  74   Tex.  329;  s.  c,  12  S.  W.  Rep. 
41. 

2  Rittenhouse  v.  Independent  Line  of    Telegraph,  44  N.  Y.  263:  s.  c, 
4  Am.  Rep.  673;  (affirming  s.  C,  1  Daly,  474). 

3  Postal  Telegraph  Cable  Co.  v.  Lathrop,  131  111.  575;  S.  C,  23  X.  E 
Rep.  583;  7  L.  R.  A.  474;  30  Cent.  L.  J.  12. 


CIPHER    DISPATCHES.  361 

nications  regarding  the  market  reports  of  stocks, 
grain  and  other  commodities,  are  often  inexplicable 
to  persons  who  have  no  experience  in  transactions 
involving  such  commodities;  yet  to  one  versed  in 
sending,  receiving,  or  transmitting  such  messages, 
they  might  be  perfectly  intelligible.  Now,  if  one 
telegraphing  in  relation  to  stocks  should  use  the 
language  commonly  employed  in  telegraphing  such 
communications,  the  message  should  be  held  to  be 
-equally  as  intelligible  to  the  telegraph  company  as  if 
it  were  written  out  in  full  English. 

§  366.  General  Information  Sufficient. — A  rea- 
sonable deduction  from  the  rule  is  that  general  in- 
formation, disclosed  by  the  language  of  the  message, 
of  the  subject  to  which  it  relates,  is  sufficient  to 
charge  the  company  with  liability  for  actual  dam- 
ages; and  that  it  is  not  necessary  that  the  company 
should  be  able  to  foresee  the  exact  amount  of  pecu- 
niary loss  which  its  negligence  would  be  likely  to 
cause.1  When,  therefore,  enough  appears  in  the 
message  to  show  that  it  is  a  commercial  or  business 
transaction,  it  is  sufficient  to  charge  the  company 
with  the  damages  resulting  from  its  negligent  trans- 
mission, although  the  operator  may  not  be  able  to 
understand  its  meaning  as  to  quantity,  quality, 
price,  etc.,  as  the  sender  and  the  party  to  whom  it 
is  sent  understand  it.2 

§  367.  Instances  of  Dispatches  Sufficiently  Dis- 
closing the  Nature  and  Importance  of  the  Transac- 
tion.— These  suggestions  naturally  lead  us  to  inquire 
what  telegraphic  messages  have  been  held  sufficient 

1  Pepper  v.  Western  Union  Tel.  Co.,  87  Tenn.  554;  8.  C,  I"  Alb.  L.  J. 
45;  22  Ohio  L.  J.  115;  4  L.  R.  A.  000:  11  S.  W.  Rep.  783. 

2  Postal  Telegraph  Cable  Co.  v.  Lathrop,  131  III.  575;  8.  C,  7  I..  H.  A. 
474;  30  Cent.  L.  J.  12;  23  X.  E.  Rep.  583. 


362        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

on  their  face,  to  disclose  to  the  company  their 
nature  and  importance.  And  here  it  may  be  pre- 
mised, that  such  a  message  does  not  fall  within  the 
rule  relating  to  cipher  dispatches,  from  the  mere 
fact  that  abbreviations  are  used  in  it  which  are  com- 
monly used  in  trade,  and  which  are  hence  presump- 
tively understood  by  the  agents  of  the  company.1 
The  following  instances  may  be  given  of  dispatches 
which  are  of  a  nature  sufficiently  to  disclose  the 
business  to  which  they  relate,  and  the  loss  which 
might  likely  occur  through  mistakes  in  transmitting, 
non-delivery,  or  unreasonable  delay  in  delivering 
them:  "Sell  one  hundred  Western  Union,  answer 
price;  "  2  "Will  you  give  one  fifty  for  twenty-five 
hundred;  "  3  "Please  buy  in  addition  to  thousand 
August  one  thousand  cheapest  month;  "  4  "You 
had  better  come  and  attend  to  your  claim  at 
om-e."  5 


1  Pepper  v.  Western  Union  Tel.  Co.,S7Tenn.  554;  s.  c,  10  Am.  St.  Rep. 
699;  11  S.  W.  Rep.  783;  40  Alb.  L.  J.  45;  22  Week.  L.  Bui.  115;  4  L.  R. 
A.  <IG0;  25  Am.  &  Eug.  Corp.  Cas.  542.  In  this  case  a  produce  dealer, 
in  response  to  an  inquiry  for  prices,  telegraphed,  "Car  cribs  six  sixty  c. 
a.  f.  prompt."  The  word  "cribs'"  meant  in  the  meat  trade  clear  ribsy 
and  "c.  a.  i.*"  meant  cost  and  freight.  These  terms  were  well  under- 
stood by  the  trade  and  by  the  telegraph  company.  The  dispatch  as  de- 
livered by  the  company  read  "thirty"  instead  of  •'sixty.''  In  conse- 
quence of  the  mistake  the  dealer  lost  $75  on  a  sale.  It  was  held,  that 
the  telegraph  company  must  bear  the  loss,  and  that  it  could  not  contend 
tiiat  the  dispatch  was  a  cipher  dispatch. 

2  Tyler  v.  Western  Union  Tel.  Co.,  60  111.  434;  s.  C,  14  Am.  Rep.  38. 

3  Western  Union  Tel.  Co.  v.  Griswold,  37  Ohio  St.  301 ;  s.  c,  41  Am. 
Rep.  500. 

4  Postal  Telegraph  Cable  Co.  v.  Lathrop,  131  Dl.  575;  s.  C,  7  L.  R.  A. 
474;  30  Cent.  L.  J.  112;  23  N.  E.  Rep.  583  (sufficiently  explicit  to  charge 
the  telegraph  company  for  a  loss  resulting  from  an  inexcusable  mistake  in 
transmitting  it). 

•>  Western  Union  Tel.  Co.  v.  Sheffield,  71  Tex.  570;  s.  c,  10  Am.  St. 
Rep.  790. 


CIPHER    DISPATCHES.  363 

§  368.  A  Further  Illustration.  —  In  a  case  in 
Penns3'lvania,  the  plaintiff's  agent  delivered  to  a 
telegraph  company  at  Lancaster  the  following  tele- 
gram, addressed  to  brokers  in  New  York:  "Buy 
fifty  North- Western,  fifty  Prairie  du  Chien;  limit 
forty-five."  The  company,  through  negligence, 
sent  it  only  part  of  the  way,  and  the  stock  named 
in  the  telegram  rose  in  value  before  the  neglect  was 
ascertained  and  another  order  sent.  It  was  held 
that  the  plaintiff  was  entitled  to  recover  the  in- 
creased cost  of  the  shares,  to  which  he  was  sub- 
jected by  the  company's  negligence.  The  court  said: 
"The  dispatch  was  such  as  to  disclose  the  nature 
of  the  business  to  which  it  related,  and  that  the  loss 
might  be  very  likely  to  occur  if  there  was  want  of 
promptitude  in  transmitting  it  containing  the 
order.  In  this  respect  it  differs  much  from  that  in 
Lanclsberger  v.  Magnetic  Telegraph  Company.1  'Get 
ten  thousand  dollars  of  the  Mail  Company,'  the 
message  in  that  case  said,  but  did  not  disclose  that 
the  money  was  to  be  gotten  from  the  Mail  Company 
to  save  from  failure  a  valuable  contract;  hence  it 
was  held  that  the  damages  arising  from  that  cause 
could  not  reasonably  be  presumed  to  have  been  in 
the  contemplation  of  the  parties  to  the  contract,  or 
not  recoverable  to  that  extent.  Here  the  object  of 
the  message  was  for  the  purpose  of  buying  stock  as 
soon  as  received;  no  other  time  being  named;  and 
it  is  not  possible,  consistently  with  any  knowledge 
of  the  business  of  dealing  in  stocks,  to  fail  to  under- 
stand that  damage  might  ensue, — nay,  would  be 
likely  to  ensue, — by  delay.  The  damage  from  such 
a  source  was  what  would   naturally  have    entered 

1  32  Barb,  (N.  Y.)  5:50. 


364        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

into  the  minds  of  the  sender  and  the  undertaker  to 
send  the  message,  if  they  thought  on  the  subject  at 

air."1 

^  369.      No  Distinction  Between    Non-Delivery   and 

Mistake. — In  respect  of  the  rule  in  Hadley  v.  Bax- 
endale,  as  applied  to  the  liability  of  a  telegraph 
■company,  there  can  be  no  distinction  in  principle 
between  the  case  of  a  mistake  in  transmitting  a 
message,  whereby  its  language  is  garbled  and  the 
addressee  misled,  and  the  case  of  a  negligent  delay 
in  delivering,  or  an  entire  non-delivery.  In  either 
case  there  has  been,  at  least,  a  breach  of  the  contract 
on  the  part  of  the  company;  and  the  rule  of  dam- 
ages formulated  in  that  celebrated  case  is  a  general 
rule  applicable  in  cases  of  breaches  of  contract.2 
This  question  must  not  be  confused  with  the  sub- 
ject already  considered,3  of  the  power  of  a  telegraph 
company,  by  stipulation  on  its  message  blanks,  to 
limit  its  liability  in  case  the  message  is  not  repeated. 
There,  it  is  held  by  those  courts  which  have  taken 
the  pains  to  reason  upon  the  subject  at  all,  that 
such  a  stipulation  cannot  operate  to  excuse  a  non- 
delivery, since  repeating  the  message  would  have 
no  tendency  to  prevent  such  an  accident/  The 
Supreme  Court  of  the  United  States  has,  however, 
taken  such  a  distinction,  where  the  dispatch  could 
not  perhaps  in  strictness  be  designated  as  a  cipher 
■dispatch.  It  read:  "Buy  ten  thousand,  if  you 
think  it  safe.     Wire  me."     In  consequence  of  delay 

1  United  States  Tel.  Co.  v.  Weuger.  55  Pa.  St.  262;  s.  C,  93  Am.  Dec. 
751. 

2  Ante,  §  311.     This  rule  of  damages  has  been  recognized  and  applied 
by  American  courts  in  many  situations.     See  Shepard  v.  Milwaukee 

-Gas-Light  Co.,  15  Wis.  318;  Richardson  v.  Chynoweth,  26  Wis.  656. 

3  Ante,  §  217,  et  seq. 

4  Ante,  §  228,  et  seq. 


CIPHER    DISPATCHES.  365 

in  delivering  it,  the  plaintiff  lost  the  advantage  of 
a  rise  in  the  market  of  petroleum.  The  court,  in 
an  elaborate  and  learned  opinion  by  Mr.  Justice 
Matthews,  held  that  the  plaintiff  could  recover  no 
more  than  the  price  of  transmitting  the  message. 
The  court  take  a  distinction,  expressed  in  the  fol- 
lowing language,  which  many  other  courts  do  not 
recognize:  "Of  course,  where  the  negligence  of 
the  telegraph  company  consists,  not  in  delaying  the 
transmission  of  the  message,  but  in  transmitting  a 
message  erroneously ,  so  as  to  mislead  the  party  to 
whom  it  is  addressed,  and  on  the  faith  of  which  he 
acts  in  the  purchase  or  sale  of  property,  the  actual 
loss  based  upon  changes  in  market  value  are 
clearly  within  the  rule  for  estimating  damages."1 
Though  the  decision  of  this  case  was  probably  cor- 
rect on  other  grounds,  this  distinction  is  believed 
to  be  unsound  where,  as  in  particular  the  case,  the 
sender  of  the  message  is  the  plaintiff. 

§  370.  Stipulations  in  Message  Blanks  as  to 
Cipher  or  Obscure  Messages. — It  is  said  that  there 
are  blanks  furnished  by  telegraph  companies  to 
their  customers,  in  which  the  sender  agrees  that 
the  company  shall  not  be  liable  "for  errors  in 
cipher  or  obscure  messages."2  The  writer  of  that 
observation  had  not  been  able  to  find  any  case  in 
which  the  reasonableness  of  this  stipulation  had 
been  the  subject  of  a  judicial  decision  ;  nor  has  the 
present  writer  been  able  to  find  such  a  case.  The  fol- 
lowing just  observation  is  made  upon  this  subject  by 
a  recent  writer  :  "  The  exact  extent  of  this  regu- 
lation   is    not    clear.     Extrinsic  knowledge  of  the 


1  Western  Union  Tel.  Co.  v.  Hall,  124  U.  S.  444,  458. 

2  Note  to  Camp  v.  Western  Union  Tel.  Co.,  71  Am.  Dec.  742. 


366        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

meaning  of  such  messages  is  not  mentioned,  nor  is 
a  refusal  to  incorporate  that  knowledge  into  con- 
tracts to  communicate  such  messages  definitely 
stated.  If  the  courts  should  "interpret  the  regula- 
tion as  intending  to  include  only  those  cases  in 
which  a  telegraph  company  has  no  other  knowl- 
edge of  the  meaning  of  a  message  than  the  face 
discloses,  a  regulation  of  this  nature  would  seem 
to  be  perfectly  useless.  If  the  message  is  mean- 
ingless, the  company  is  liable  only  in  nominal 
damages.  If  the  message  is  not  meaningless,  the 
company  cannot,  as  a  rule,  contract  against  the  loss 
that,  from  the  face  of  the  message,  would  seem  to 
be  the  natural  and  proximate  consequence  of  a 
breach.!' 

§  371.  Stipulation  as  to  Repeating1,  in  its  Appli- 
cation to  Cipher  Dispatches. — If  a  condition  ill  a 
message  blank  which  exonerates  the  company  from 
liability  in  case  the  dispatch  is  not  repeated,  is  rea- 
sonable when  applied  to  a  dispatch  the  purport  of 
which  can  be  understood  by  reading  it,2 it  is  reason- 
able, for  stronger  reasons,  in  the  case  of  a  cipher 
dispatch,  the  purport  of  which  cannot  be  under- 
stood by  reading  it ;  and  so  it  has  been  held.3 

§  372.  Cases  Which  Deny  that  there  is  Any  Dis- 
tinction hetween  Cipher  and  Other  Dispatches  in  Re- 
spect of  the  Measure  of  Damages. — We  may  Conclude 
this  chapter  by  referring  to  a  limited  class  of  Amer- 
ican cases,  which  hold  that  a  telegraph  company  is 
liable  in  damages  for  the  non-delivery,  or  for  un- 
reasonable delay  in  the  delivery,  of  a  cipher  dis- 

1  Gray  Com.  by  Tel.  §  92,  note. 

4  Lassiter  v.  Western  Union  Tel.  Co.,  89  N.  C.  334;  ante,  §  217. 
3  Cannon  v.  Western  Union  Tel.  Co.,  100  N.  C.  311;  s.  c,  6  Am.  St. 
Rep.  590. 


CIPHER    DISPATCHES.  ob7 

patch,  and  that  the  recovery  in  such  a  case  is  not 
limited  to  nominal  damages,  or  to  the  mere  sum 
paid  for  the  transmission  of  the  message,  although 
the  company  did  not  otherwise  have  knowledge  of 
the  special  circumstances  making  the  message  im- 
portant.1 It  is  said  to  be  of  no  consequence  whether 
the  dispatch  is  in  plain  English  or  in  cipher,  pro- 
vided the  cipher  is  written  in  the  English  alphabet.2 
Where  such  a  dispatch  directs  the  sale  of  goods 
owned  by  the  sender,  the  measure  of  damages  is 
held  to  be  the  difference  in  the  market  price  be- 
tween the  time  when  they  would  have  been,  sold  if 
the  dispatch  had  been  delivered  and  the  time  of  the 
.actual  sale.3 

§  373.      Exemplary  Damages   for   the   Non-Delivery 

of  Cipher  Dispatches. — It  has  been  held  that  exem- 
plary damages  cannot  be  recovered  for  a  breach  of 
a  contract  to  send  a  message  written  in  cipher,  the 
meaning  of  which  is  not  communicated  to  the 
agent  of  the  company  to  whom  it  is  delivered,  in 
the   absence  of   evidence   of  'negligence,   wanton    or 


1  Western  Union  Tel.  Co.  v.  Fatinan,  73  Ga.  285;  s.  c,  54  Am.  Rep. 
877;  Western  Union  Tel.  Co.  v.  Reynolds,  77  Va.  173;  s.  c,  46  Am. 
Rep.  715  (Lewis,  P.,  dissenting) ;  Daughtery  v.  American  Union  Tel. 
Co.,  75  Ala.  168;  s.  c,  51  Am.  Rep.  435;  Western  Union  Tel.  Co.  v. 
Way,  83  Ala.  542  (Somerville,  J.,  dissenting) ;  Western  Union  Tel.  Co.  v. 
Heyer,  22Fla.  637;  B.C.,  1  Am.  St.  Rep.  222;  1  South.  Rep.  129  (Raney, 
J.,  dissenting) ;  Ritteubouse  v.  Independent  Line  of  Telegraph,  1  Daly 
(N.  Y.),  474  (semble);  Bowen  v.  Lake  Erie  Tel.  Co.,  1  Am.  L.  Reg.  685 
(nisi  prius  case) ;  American  Union  Tel.  Co.  v.  Daughtery,  89  Ala.  191; 
s.  c,  sub.  nam.;  American  Union  Tel.  Co.  v.  Daughtery  (Ala.),  7 
South.  Rep.  660  (Somerville,  .J.,  dissenting) ;  Strasburger  v.  Western 
Union  Tel.  Co.,  cited  Scdgw.  Dam.,  6th  ed.,  p.  441,  note;  2  Thomp. 
Neg.  p.  856.  See  McColl  v.  Western  Union  Tel.  Co.,  7  Abb.  N.  Cas.  (N. 
Y.)  151,  154,  and  note. 

2  Western  Union  Tel.  Co.  v.  Heyer,  22  Fla.  637. 

3  Daughtery  v.  American  Union  Tel.  Co.,  75  Ala.  168;  S.  C,  51  Am. 
Rep.  435. 


368        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

willful,  or  so  gross  as  to  evince  an  entire  want  of 
care.1 

§  374.  Unintelligible  Dispatches  Subject  to  Parol 
Explanation. — It  has  been  held  that  the  meaning  of 
a  telegraphic  message  from  a  live-stock  broker  to  a 
shipper,  couched  in  such  terms  as  to  be  understood 
by  the  shipper,  but  which  are  unintelligible  to  per- 
sons not  engaged  in  the  stock  business  as  shippers, 
may  be  explained  by  the  testimony  of  the  broker, 
in  an  action  against  the  telegraph  company  for 
failure  to  deliver  it.2 

§  375.  Evidence  that  Agent  had  Information  of 
Nature  of  Message. — The  obviously  sound  rule  is 
that  the  question  whether  the  agent  had  informa- 
tion of  the  nature  of  the  message  is  not  to  be  deter- 
mined solely  by  the  face  of  the  message  itself,  but 
may  be  shown  by  oilier  relevant  farts  and  circum- 
stances, including  the  fact  that  previous  similar 
messages  had  been  sent  by  the  same  operator  with 
knowledge  of  their  character.3 

1  Western  Union  Tel.  Co.  v.  Way,  S3  Ala.  542;  ?.  c,  4  South.  Rep. 
844. 

2  Western  Union  Tel.  Co.  v.  Collins  (Kan.),  25  Pac.  Rep.  187. 

3  Postal  Telegraph  Cable  Co.  v.  Lathrop,  131  111.  575;  S.  C.,7L.  R.  A. 
474;  30  Cent.  L.  J.  412;  23  X.  E.  Rep.  583. 


INJURY    TO    THE    FEELINGS.  369 


Article  V.—  INJURY  TO  THE  FEELINGS. 


Section. 

378.  Damages  Given  for  Idjuit  to  the  Feelings  Alone. 

379.  Judicial  Observations  in  Support  of  this  View. 

380.  Illustrations. 

381.  Rule  Clearer  where  the  Mental  is  Coupled  with  Physical  Pain. 
3S2.    Not  Given  as  Exemplary  Damages. 

383.  Illustrations. 

384.  View  that  no  Damages  can  be  Given  for  Mere  Mental  Anguish. 

385.  Husband  cannot  Recover  for  Injury  to  His  Own  Feelings  where 

the  Action  is  for  an  Injury  to  the  Wife. 

386.  The  Company  must  be  Apprised  of  the  Special  Circumstances. 
3S7.    Further  of  this  Subject. 

388.    Further  Views  as  to  the  Measure  of  Damages  in  Such  Cases. 
3S9.    Failure  to  Deliver  a  Telegram  Calling  a  Physician  in  a  Case  of 
Confinement. 

390.  Difference  between   Quantity  of  Pain   Suffered  and  Quantity 

which  would  have  been  Suffered. 

391.  What  if  the  Doctor  could  not  have  Reached  the  Patient  in  any 

Event. 

392.  Damages  for  Failure  of  Husband  to  Attend  His  Wife  in  Case  of 

Confinement. 

393.  Quantum  of  Damages  for  Mental  Suffering. 


§  378.  Damages  Given  for  Injury  to  the  Feelings 
Alone. — Several  courts  have  recently  taken  the  view 
that  damages  may  be  given  in  an  action  against  a 
telegraph  company  for  the  failure  to  transmit  and 
deliver  a  message,  where  the  only  element  of 
damages  consists  in  injury  to  the  feelings,  and  where 

(24) 


370        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

there  is  no  element  of.  physical  suffering  or  pecu- 
niary loss.1 

§  379.      Judicial    Observations    in   Support  of  this 

View. — The  Supreme  Court  of- Texas,  in  holding  in- 
jury to  the  feelings  an  independent  element  of 
damage,  say:  "In  cases  of  bodily  injury,  the 
mental  suffering  is  not  more  directly  and  naturally 
the  result  of  the  wrongful  act  than  in  this  case, — 
not  more  obviously  the  consequence  of  the  wrong 
done  than  in  this  case.  What  difference  exists  to 
make  the  claimed  distinction?  That  it  is  caused 
by  and  contemplated  in  the  doing  of  the  wrongful 
act  is  the  principle  of  liability.  The  wrong-doer 
knows  that  he  is  doing  this  damage  when  he  afflicts 
the  mind  by  withholding  the  message  of  mortal 
illness,  as  well  as  by  a  wound  to  the  person."2  The 
Court  of  Appeals  of  Kentucky,  speaking  upon  the 
same  subject,  say:  "  Many  of  the  text-writers  say 
that  a  person  cannot  recover  damages  for  mental 
anguish  alone,  and  that  he  can  recover  such  dam- 

1  Stuart  v.  Western  Union  Tel.  Co.,  66  Tex.  580;  reaffirmed  in  Wilson 
v.  Gulf,  etc.  K.  Co.,  69  Tex.  739,  and  in  Western  Union  Tel.  Co.  v. 
Cooper,  71  Tex.  507;  s.  C,  10  Am.  St.  Rep.  772;  9  S.  W.  Rep.  598;  1  L- 
R.  A.  72S;  Western  Union  Tel.  Co.  v.  Broesche,  72  Tex.  654;  s.  c,  10 
S.  W.  Rep.  734;  Western  Union  Tel.  Co.  v.  Simpson,  73  Tex.  423;  s.  c, 
11  S.  W.  Rep.  385;  Western  Union  Tel.  Co.  v.  Adams,  75  Tex.  531;  s.  c, 
6  L.  R.  A.  844;  12  S.  W.  Rep.  857;  Wadsworth  v.  Western  Union  Tel. 
Co.,  86  Tenn.  695;  s.  c,  6  Am.  St.  Rep.  864;  8  S.  W.  Rep.  574;  Reese 
v.  Western  Union  Tel.  Co.,  123  Ind.  294;  s.  C,  24  N.  E.  Rep.  163; 
Beasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Rep.  181;  Western  Union 
Tel.  Co.  v.  Henderson,  89  Ala.  510;  s.  c,  7  South.  Rep.  419;  Thomp- 
son v.  Western  Union  Tel.  Co.,  106  N.  C.  549;  s.  C,  11  S.  E.  Rep.  269; 
Chapman  v.  Western  Union  Tel.  Co.  (Ky.),  13  S.  W.  Rep.  880;  Young 
v.  Western  Union  Tel.  Co.,  107  N.  C.  370;  s.  c,  11  S.  E.  Rep.  1044;  42 
Abb.  L.  J.  518;  Thompson  v.  Western  Union  Tel.  Co.,  107  N.  C.  449; 
s.  c,  12  S.  E.  Rep.  427. 

2  Stuart  v.  Western  Union  Tel.  Co.,  66  Tex.  5S0,  quoted  with  approval 
in  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  s.  c,  10  Am.  St. 
Rep.  772. 


INJURY    TO    THE    FEELINGS.  371 

ages  only  where  he  is  entitled  to  recover  some 
damages  upon  some  other  ground.  It  will  gen- 
erally be  found,  however,  that  they  are  speaking  of 
cases  of  personal  injury.  If  a  telegraph  company 
undertakes  to  send  a  message,  and  fails  to  use  ordi- 
nary diligence  in  doing  so,  it  is  certainly  liable  for 
some  damage.  It  has  violated  its  contract;  and 
whenever  a  party  does  so  he  is  liable  at  least  to 
some  extent.  Every  infraction  of  a  legal  right 
causes  injury,  in  contemplation  of  law.  The  party 
being  entitled  in  such  a  case  to  recover  something, 
why  should  not  an  injury  to  the  feelings,  which  is 
often  more  injurious  than  a  physical  one,  enter  into 
the  estimate  ?  Why,  being  entitled  to  some  damage 
by  reason  of  the  other  party's  wrongful  act,  should 
not  the  complaining  party  recover  all  the  damage 
arising  from  it?  It  seems  to  us  that  no  sound  rea- 
son can  be  given  to  the  contrary.  The  business  of 
telegraphing,  while  yet  in  its  infancy,  is  already  of 
wonderful  extent  and  importance  to  the  public.  It 
is  growing,  and  the  end  cannot  yet  be  seen.  A 
telegraph  company  is  a  quasi  public  agent,  and  as 
such  it  should  exercise  the  extraordinary  privileges 
accorded  to  it,  with  diligence  to  the  public.  If,  in 
matters  of  mere  trade,  it  negligently  fails  to  do  its 
duty,  it  is  responsible  for  all  the  natural  and  proxi- 
mate damage.  Is  it  to  be  said  or  held,  that,  as  to 
matters  of  far  greater  interest  to  a  person,  it  shall 
not  be,  because  feelings  or  affections  only  are  in- 
volved? If  it  negligently  fails  to  deliver  a  message 
which  closes  a  trade  for  $100,  or  even  less,  it  is  re- 
sponsible for  the  damage.  It  is  said,  however,  that 
if  it  is  guilty  of  like  fault  as  to  a  message  to  the 
husband  that  the  wife  is  dying,  or  the  father  thai 


372        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

his  son  is  dead,  and  will  be  buried  at  a  certain 
time,  there  is  no  responsibility  save  that  which  is 
nominal.  Such  a  rule,  at  first  blush,  merits  disap- 
proval. It  would  sanction  the  company  in  wrong- 
doing. It  would  hold  it  responsible  in  matters  of 
the  least  importance,  and  suffer  it  to  violate  its 
contracts  with  impunity  as  to  the  greater.  It  seems 
to  us  that  both  reason  and  public  policy  require 
that  it  should  answer  for  all  injury  resulting  from 
its  negligence,  whether  it  be  to  the  feelings  or  the 
purse,  subject  only  to  the  rule  that  it  must  be  the 
direct  and  proximate  consequence  of  the  act.  The 
injury  to  the  feelings  should  be  regarded  as  a  part 
of  the  actual  damage,  and  the  jury  be  allowed  to 
consider  it.  If  it  be  said  that  it  does  not  permit  of 
accurate  pecuniary  measurement,  equally  so  may  it 
be  said  of  any  case  where  mental  anguish  enters 
into  the  estimate  of  injury  for  a  wrong,  and  it 
furnishes  no  sufficient  reason  why  an  injured  party 
should  not  be  allowed  to  look  to  the  wrong-doer  for 
reparation.  If  injury  to  the  feelings  be  an  element 
to  the  actual  damage  in  slander,  libel  and  breach  of 
promise  cases,  it  seems  to  us  it  should  equally  be 
so  considered  in  cases  of  this  character.  If  not, 
then  most  grievous  wrongs  may  often  be  inflicted 
with  impunity ;  legal  insult,  added  to  outrage  by 
the  party,  by  offering  one  cent,  or  the  cost  of  the 
telegram,  as  compensation  to  the  injured  party. 
Whether  the  injury  be  to  the  feelings,  or  pecuniary, 
the  act  of  the  violator  of  a  right  secured  by  con- 
tract has  caused  it.  The  source  is  the  same,  and 
the  violator  should  answer  for  all  the  proximate 
damages."1 

1 'Chapman  v.  Western  Union  Tel.   Co.  (Ky.),   13  S.  W.  Rep.  880; 
30  Am.  &  Eng.   Corp.   Cas.   626;  quoted  with  approval  in  Young  v. 


INJURY    TO    THE    FEELINGS.  373 

§  380.  illustrations. — A  telegraph  company, which 
negligently  failed  to  deliver  two  telegrams  announc- 
ing the  illness,  death,  and  date  of  the  funeral 
of  the  plaintiff's  father,  was  held  liable  to  the  plaint- 
iff in  substantial  damages  for  the  injury  to  his  feel- 
ings, without  proof  of  physical  pain  or  pecuniary 
loss.1  So,  it  has  been  held  that  if  a  message  is  sent 
to  a  person,  informing  him  of  the  dangerous  illness 
of  his  wife,  and  the  company  negligently  fails  to 
deliver  it  for  eight  days,  so  that  he  does  not  get  it 
until  after  her  death  and  burial,  he  can  recover  dam- 
ages for  the' mere  mental  anguish   thereby   caused.2 

§    381.      Rule  Clearer  Where  the  Mental  is  Coupled 

with  Physical  Pain,  etc. — Some  of  the  courts  seem 
to  proceed  upon  the  idea  that  damages  for  injury  to 
the  feelings  can  only  be  given  where  the  plaintiff  is 
entitled  to  recover  other  compensatory  damages;  in 
other  words,  that  damages  for  injury  to  the  feelings 
can  only  be  given  as  supplemental  damages,  so  to 
speak.  This  idea  has  probably  been  adopted  from 
the  rule  which  has  obtained  in  respect  of  exemplary 
damages.  Such  damages,  it  is  well  known,  are  given 
for  mere  punishment  or  example,  and  can  never  be 
given  except  where  the  facts  disclose  grounds  for  re- 
covering compensatory  damages;  otherwise  a  man 
might  bring  a  civil  action  for  a  mere  criminal  offense. 
The  Supreme  Court  of  Alabama,  in  a  late  case,  seem 
to  doubt  the  soundness  of  this  distinction,  and  hold 
that  whatever  the  rule  may  be  where  the  addressee 
brings  the  action,  yet   where  it  is   brought   by  the 

Western  Union  Tel.  Co.,  107   X.  C.  370;  S.  C,  11  S.  E.  Rep.  1044;  42 
Abb.  L.  J.  518. 

1  Chapman  v.  Western  Union  Tel.  Co.  (Ky.),  13  S.  W.  Rep.  S80;  s.c, 
30  Am.  &  Eng.  Corp  Cas.  620. 

2  Young  v.  Western  Union  Tel.  Co. ,107  X.  C.  370;  s.  c,  11  S.  10.  Rep. 
1041. 


374        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

sender  of  the  message,  he  may  recover  such  dam- 
ages, because  he  is  entitled  to  other  actual  damages 
for  the  breach  of  the  contract  between  him  and  the 
defendant,  to  the  extent  of  the  price  paid  for  trans-- 
mitting  the  message  at  least.1  And  it  must  be  ob- 
served that  the  distinction  does  not  rest  upon  any 
sound  foundation. 

§  382.  Not  Given  as  Exemplary  Damages. — On 
the  contrary,  damages  for  mental  suffering,  Avhen 
given*  are  given  on  the  theory  of  compensation; 
though  the  facts  may  often  be  such  as  to  authorize 
a  further  award  of  damages  by  way  of  punishment 
or  example.  Accordingly,  a  petition  which  dis- 
closes no  other  ground  of  recovery  than  injury  to 
the  feelings  in  consequence  of  the  non-delivery  of  a 
message,  through  the  mere  negligence  or  forgetful- 
ness  of  the  employees  of  the  company,  does  not,  it 
has  been  held,  disclose  a  case  for  exemplary,  but  of 
actual  damages  only.2  Keeping  in  mind  the  rule  that 
exernplary  damages  are  given  only  in  cases  of  malice, 
fraud,  oppression,  or  negligence  so  gross  as  to  evince 
a  disregard  of  social  duty  and  to  be,  therefore,  tanta- 
mount to  malice, — we  are  prepared  for  the  view 
that  mental  suffering,  occasioned  merely  by  theneg- 

1  Western  Union  Tel.  Co.,  v.  Henderson,  89  Ala.  510;  s.  c,  7  South. 
Rep.  419.  So  held  in  Reese  v.  Western  Union  Tel.  Co.,  123  Ind.  224; 
Thompson  v.  Western  Union  Tel.  Co.,  106  N.  C.  549 ;  s.  c,  11  S.  E.  Rep. 
269;  30  Am.  &.  Eng.  Corp.  Cas.  634.  On  the  second  appeal  in  this  case 
the  distinction  was  abandoned.     107  N.  C.  449. 

2  Stuart  v.  Western  Union  Tel.  Co.,  66  Tex.  580;  s.  c,  59  Am.  Rep. 
623;  distinguishing  on  this  point,  Gulf,  etc.  R.  Co.  v.  Levy,  59  Tex.  542; 
s.  C,  46  Am.  Rep.  269.  In  this  last  case  there  was  no  contract  relation 
between  him  and  the  company,  so  the  court  held  that  in  the  failure  to 
deliver  the  message,  the  company  was  only  guilty  of  a  tort,  and  in 
such  a  case  actual  damage  must  be  shown,  to  let  in  exemplary  damages  or 
damages  to  the  feelings.  In  the  Stuart  case,  supra,  there  was  a  contract 
relation,  and  the  court  held  that  the  two  cases  were  thus  distinguish- 
able. 


INJURY    TO    THE    FEELINGS.  375 

ligent  failure  to  transmit  a  message  containing  noth- 
ing indicating  its  special  importance,  which  was  not 
otherwise  made  known  to  the  agent,  is  not  a  ground 
for  the  recovery  of  such  damages.1 

§  383.  illustrations. — In  view  of  the  foregoing, 
Ave  may  more  easily  concur  with  a  late  holding  that 
where  a  telegram  is  sent  by  a  wife,  about  to  be  con- 
fined, to  surmnon  her  husband,  and  by  reason 
of  a  negligent  delay  of  twenty-four  hours  in  the 
delivery  of  the  dispatch  he  did  not  arrive,  where- 
by the  complaint  alleges  she  suffered  more  phys- 
ical pain,  mental  anxiety,  and  alarm  on  account 
of  her  condition,  and  sustained  permanent  and 
incurable  injury  for  want  of  his  presence  and 
services,  such  damages  are  not  too  remote.2  In 
another  case  which  was  an  action  to  recover  dam- 
ages for  negligent  delay  in  transmitting  a  message, 
the  petition  set  forth  that  a  telegram:  "Come  imme- 
diately, I  am  very  sick,"  was  delivered  to  the  agent 
of  the  defendant  company  for  transmission;  that  he 
was  informed  that  the  sender  was  the  son  of  the  ad- 
dressee; and  that,  owing  to  negligence  and  de- 
lay in  sending  and  delivering  the  message,  the  com- 
plainant was  deprived  of  the  privilege  of  being  with 
him  in  the  last  moments  of  his  life  and  attending 
his  burial.     The  court  held  that  the  petition  set  forth 

1  McAllen  v.  Western  Union  Tel.  Co.,  70 Tex.  243;  s.  c,  7  S.  W.  Rep. 
715.  Said  the  court :  "If  grief  or  sorrows  produced  by  things  unreal, 
mere  figments  of  the  brain,  are  held  to  give  a  cause  of  action  for  a 
breach  of  contract  or  tort,  an  individual  of  a  somber,  glowing  imagina- 
tion, would  often  be  entitled  to  large  damages  on  account  of  mental  suf- 
fering, while  others  of  a  buoyant  fancy  for  the  same  breach  of  duty 
would  not  be  entitled  to  anything;  and  damages,  instead  of  being  meas- 
ured by  the  rules  of  law  as  applied  to  the  real  facts,  would  largely  de- 
pend upon  the  fertility  of  the  imagination  of  the  suitor." 

2  Thompson  v.  Western  Union  Tel.  Co.,  107  N.  C.  449;  s.  C,  12  S.  E. 
Rep.  427. 


376         ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

a  cause  of  action;  and  that  the  elements  of  actual 
damage  were  the  cost  of  the  telegram,  the  expenses 
of  travel,  and  the  mental  suffering;  and  that  the 
fact  that  a  later  train,  which  the  complainant  was 
compelled  to  take,  would  have  taken  her  to  her  son 
in  time,  but  for  the  fault  of  the  railroad  company, 
was  no  defense.1 

()  384.  View  that  no  Damages  can  be  Given  for 
Mere  Mental  Anguish. — No  damages  can,  in  the  view 
of  some  courts,  be  recovered  for  mere  mental  anguish 
or  suffering  produced  by  the  failure  to  deliver  a 
telegraphic  message,  unless  (and  such  a  case  can 
hardly  be  conceived)  the  failure  has  resulted  in 
physical  suffering  which  is  the  proximate  cause  of 
the  mental  suffering.2  Accordingly,  where  the  ac- 
tion was  for  damages  for  failing  to  deliver  a  message 

1  Loperv.  Western  Union  Tel.  Co.,  70  Tex.  6S9;  s.  C,  21  Am.  &  Eng. 
Corp.  Cas.  191 ;  8  S.  W.  Rep.  600.  So,  in  Tennessee,  it  has  been  lately 
held  that  where  a  person  sent  a  telegram  to  the  plaintiff,  his  sister,  con- 
taining information  of  the  serious  illness  of  her  brother,  and  subse- 
quently another  one  informing  her  of  his  death;  and  by  reason  of  the 
negligeuce  of  the  company  the  dispatches  were  not  delivered,  whereby 
the  brother  was  deprived  of  that  attention  at  her  hands  which  he  would 
have  received  but  for  such  negligence,  and  she  in  consequence  was  un- 
able to  make  prepartions  for  his  funeral,— she  was  held  entitled  to  dam- 
ages for  the  wrong  and  injury  done  to  her  affections  and  feelings.  This 
decision  seems  to  be  squarely  to  the  effect  that  injured  feelings,  without 
more,  may  in  such  a  case  be  the  basis  of  recovering  substantial  damages. 
Wadsworth  v.  Western  Union  Tel.  Co.,  86  Tenn.  695;  s.  c,  6  Am.  St. 
Rep.  864,  (Lurton  and  Folkes,  J  J.,  dissenting).  But  there  is  a  ground 
on  which  this  decision  is  capable  of  being  ••distinguished,"  which  is  the 
ground  on  which  Mr.  Chief  Justice  Turney  concurred,  namely,  that 
telegraph  companies  are  liable  in  damages  to  the  party  aggrieved,  under 
the  statute  of  that  State  (Tenn.  Code  (T.  &  S.,  §§  1321-1323),  (M.  &  V., 
§§  1541,1542),  and  that  the  statute  does  not  discriminate  between  mes- 
sages pertaining  to  matters  of  a  pecuniary  nature  and  those  which  are 
sent  for  the  receiver's  personal  benefit,  and  which  relate  merely  to  do- 
mestic matters. 

2  Russell  v.  Western  Union  Tel.  Co.,  3  Dak.  315;  West  v.  Western 
Union  Tel.  Co.,  39  Kan.  93;  s.  c,  9  Am.  St.  Rep.  530;  17  Pac.  Rep. 
807;  Chase  v.  Western  Union  Tel.  Co.,  44  Fed.  Rep.  554. 


INJURY    TO    THE    FEELINGS.  377 

in  which  a  son  notified  his  father  of  the  death  and 
funeral  of  a  brother  of  the  latter,  it  was  intimated 
that  damages  for  the  mental  disappointment  and 
suffering  could  not  be  recovered.2     To  illustrate,  let 

2  West  v.  Western  Union  Tel.  Co.,  39  Kan.  93;  s.  c,  9  Am.  St.  Rep. 
530.  "Such  damages,"  it  is  said,  "can  only  enter  into  and  become  a 
part  of  the  recovery  where  the  mental  suffering  is  the  natural,  legiti- 
mate and  proximate  consequence  of  the  physical  injury."  Salina  v. 
Trosper,  27  Kan.  544.  Again,  it  is  said  that,  "No  damages  can  be  re- 
covered for  a  shock  and  injury  to  the  feelings  and  sensibilities,  or  for 
mental  distress  and  anguish  caused  by  a  breach  of  a  contract,  except  a 
marriage  contract."  Russell  v.  Western  Union  Tel.  Co.,  3  Dak.  315. 
In  So  Relle  v.  Western  Union  Tel.  Co.,  55  Tex.  308;  s.  C,  40  Am.  Rep. 
805,  it  was  held  that  a  telegraph  company  is  liable  for  injury  to  the 
feelings  of  a  son  caused  by  its  neglect  to  deliver  to  him  a  message 
announcing  the  death  of  his  mother,  whereby  he  is  prevented  from  at- 
tending her  funeral.  But  this  decision,  which  was  pronounced  by  a 
commission  of  appeals,  was  overruled  by  the  Supreme  Court  of  the 
same  State  in  the  subsequent  case  of  Gulf,  etc.  R.  Co.  v.  Levy,  59  T*-x. 
563;  s.  c,  46  Am.  Rep.  27S.  This  last  decision  seems  to  be  overruled 
and  the  former  reinstated  by  the  later  case  of  Stuart  v.  Western  Union 
Tel.  Co.,  66  Tex.  580;  s.  c,  59  Am.  Rep.  623,  although  the  court  say 
that  the  two  cases  are  in  conflict  only  on  the  single  point  that  injuiy  to 
the  feelings  alone  would  sustain  such  an  action.  In  Logan  v.  Western 
Union  Tel.  Co.,  84  111.  46S,  which  was  an  action  by  a  father  against  a 
telegraph  company  for  negligence  in  failing  to  deliver  a  telegram  sent 
by  him  to  his  son  summoning  him  to  the  death-bed  of  his  mother,  it 
was  held  that  the  plaintiff  was  entitled  to  recover  at  least  nominal  dam- 
ages, including  the  price  paid  Ihe  company  for  sending  the  message, — 
but  nothing  beyond  this  was  considered.  In  Wymau  v.  Leavitt,  71  Me. 
227;  s.  c,  36  Am.  Rep.  303,  which  was  an  action  for  damages  for  injury 
to  real  estate  by  blasting  rock,  it  was  held  that  the  mental  anxiety  of 
the  plaintiff  for  the  safety  of  herself  and  family  was  not  a  proper  ele- 
ment of  damages.  In  Chase  v.  Western  Union  Tel.  Co.,  44  Fed.  Rep. 
554,  Mr.  District  Judge  Newman  cited  the  following  authorities  as  de- 
nying the  right  to  recover  damages  for  mental  suffering  unmixed  with 
any  other  element  of  damage:  Russell  v.  Western  Union  Tel.  Co.,  3 
Dak.  315;  s.  C,  19  N.  W.  Rep.  40S;  West  v.  Western  Union  Tel.  Co., 
39  Kan.  93;  S.  C,  17  Pac.  Rep.  807;  Gulf,  etc.  R.  Co.  v.  Levy,  59  Tex. 
542,  563;  Wyman  v.  Leavitt,  71  Me.  227;  Johnson  v.  Wells,  6  Nev.  22  ! ; 
Nagel  v.  Railway  Co.,  75  Mo.  653;  Railway  Co.  v.  Stables,  62  111.  313; 
Freese  v.  Tripp,  70  111.  503;  Meidel  v.  Anthis,  71  111.  241 ;  -loch  v.  Dank- 
wardt,  85  111.  333;  Porter  v.  Railway  Co.,  71  Mo.  83;  Fenelon  v.  ButtP, 
53  Wis.  344;  s.  C,  10  N.  W.  Rep.  501;  Ferguson  v.  Davis  Co.,  57  Iowa, 
601;  s.  C,  ION.  W.  Rep.  906;  Stewart  v.  Ripon,  38  Wis.  5S4;  Masters 
v.  Warren,  27  Conn.  293;  Blake  v.  Railway  Co.,  10  Eng.  Law  &  Eq.  112; 


378       ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

us  take  a  case  where  the  plaintiff,  hearing  that  his 
father  was  sick  at  E.,  and  wishing  to  visit  him,  de- 
livered to  the  defendant  telegraph  company  at  S.  a 
message  for  transmission  to  his  father  at  E.,  which 
simply  directed  that  a  carriage  be  sent  for  him  at  P., 
the  nearest  station,  seventy-five  miles  distant  from 
E.  The  operator  was  not  informed  of  the  father's 
sickness,  and,  owing  to  his  fault  in  not  knowing  or 
recollecting  that  the  telegraph  office  at  E.  had  been 
abandoned  for  more  than  a  month,  no  reply  was  re- 
ceived. After  waiting  six  days,  the  plaintiff  went 
to  P.,  and,  finding  no  word  from  his  father,  and  not 
being  able  to  obtain  a  conveyance  by  the  more  di- 
rect route  to  E.,  was  obliged  to  take  a  circuitous 
route,  a  distance  of  200  miles  by  a  "buckloard." 
The  court  held  that  no  recovery  could  be  had  for 
the  mental  suffering  caused  by  the  failure  to  receive 
a  reply,  or  word  from  the  father  at  P.,  or  the  phys- 
ical pain  caused  plaintiff  in  the  journey  of  200  miles 
from  P.  to  E.  by  the  "  buckboard."1 

§    385.      Husband  Cannot  Recover  for  Injury  to  His 
Own  Feelings  where  the  Action  is  for  an  Injury  to  the 

Wife. — In  Texas,  where  the  husband  brings  a  suit 
for  an  injury  to  his  wife,  she  not  being  joined — not 
being,  under  the  procedure  in  that  State,  a  neces- 
sary party,2  he  cannot  recover  damages  against  the 
telegraph  company  for  injury  to  his  feelings.  The 
court  so  hold,  on  the  theory  that  such  damages  were 

Lynch  v.  Knight,  9  H.  L.  Cas.  577;  Burke  v.  Railway  Co.,  10  Cent.  L. 
J.  4S;  Rowell  v.  Western  Union  Tel.  Co.,  75  Tex.  26;  S.  C,  12  S.  W. 
Rep.  534;  Thompson  v.  Western  Union  Tel.  Co.,  106  N.  C.  549;  s.  C, 
11  S.  E.  Rep.  269;  30  Am.  &  Eng.  Corp.  Cas.  634. 

1  McAllen  v.  Western  Union  Tel.  Co.,  70  Tex.  243;  S.  C,  21  Am.  & 
Eng.  Corp.  Cas.  195;  7  S.  W.  Rep.  715. 

2  Texas  Central  R.  Co.  v.  Burnett,  61  Tex.  638;  San  Antonio  City  R. 
Co.v.  Helm,  64  Tex.  147. 


INJUKY    TO    THE    FEELINGS.  379 

too  remote  and  consequential,  but  do  not  seem  to 
proceed  on  the  view  that  he  cannot  bring  an  action 
in  right  of  his  wife,  and  recover  damages  in  his  own 
right.  Says  Collard,  J.:  "The  person  who  suffers 
the  injuries  proximately  resulting  from  the  wrong 
done,  and  such  person  alone,  is  entitled  to  compen- 
sation, except  in  cases  where  death  results,  and  the 
cause  of  action  is  made  to  survive  to  the  relatives 
by  virtue  of  a  statute.  The  husband  can  sue  for 
such  injuries  to  his  wife,  but  he  cannot  recover  on 
his  own  account  for  his  anxiety  and  sympathy."1 

§  386.  The  Company  must  be  Apprised  of  the 
Special  Circumstances. — As  damages  for  mental  suf- 
fering, injury  to  family  affection  and  the  like,  are 
given  on  the  footing  of  compensation,  the  rule  of 
Hadley  v.  Baxendale 2  applies  in  such  a  sense  that  the 
company,  in  order  to  be  held  liable  for  such  dam- 
ages, must  have  had  notice,  either  through  the 
wording  of  the  dispatch  or  otherwise,  of  the  special 
circumstances  in  consequence  of  which  a  failure  to 
transmit  it  seasonably  and  correctly  will  entail  men- 
tal suffering;  and  such  we  find  to  be  the  law,  as  recog- 
nized in  several  decisions.  The  Supreme  Court  of 
Texas,  in  one  case,  proceeded  on  the  view  that  the 
telegram  must,  to  support  an  action  for  the  recovery 
of  such  damages,  disclose  the  relationship  of  the 
parties.  Accordingly,  it  was  held  that  a  dispatch 
in  the  words:  "Come  on  first  train;  bring  Fer- 
dinand; his  father  is  very  low, — "  which  was  so  de- 
layed that  the  plaintiff's  wife  was  unable  to  reach 
her  father  before  his  death, — would  not  support  an 
action  for  damages  for  the  mental  suffering   of  the 

1  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  B.C.,  10  Am. St.  Rep. 
772. 

2  Ante.  §  311. 


380        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

plaintiffs  wife.1  But  where  the  telegram  read:  "Billie 
is  very  low;  come  at  once," — this  was  held  by 
the  same  court  sufficient  to  advise  the  com- 
pany of  the  consequences  of  failure  to  deliver 
the  message  so  as  to  make  it  liable  for  dam- 
ages consisting  of  mental  suffering/ — the  ap- 
parent distinction  being  that  the  word  "father"  is 
not  sufficient  to  convey  such  information,  while  the 
word  "  Billie  "  is.  Again,  where  the  telegram  is 
sent  from  A.  to  B.,  their  surnames  being  unlike, — 
reading:  "Willie  died  yesterday  evening  at  six 
o'clock;  will  be  buried  at  Marshall  Sunday  even- 
ing"— this  was  held  not  to  import  family  relationship 
between  Willie  and  B.,  so  as  to  entitle  B.  to  damages 
for  the  outrage  to  his  fraternal  feelings  in  failing  to 
hear  of  his  brother's  death  in  time  to  attend  the 
funeral  and  condole  with  his  sister.3 

§  387.  Further  of  this  Subject. — The  same  court, 
in  a  subsequent  case,  had  before  it  a  case  of  the  non- 
deliver}'  of  a  message  which,  without  disclosing  the 
relationship  of  the  parties,  stated  that  the  person 
named  was  dying,  and  said:  "Come  quick."  Here, 
the  court  took  the  more  sensible  view  that  such  a 
message  sufficiently  disclosed  its  urgency  without 
stating  the  relationship  of  the  parties,  and  held  that 
the  addressee  who,  in  consequence  of  the  failure  of 
the  company  to  deliver  it,  had  been  prevented  from 
being  present  at  the  death-bed  of  his  brother,  was 
entitled  to  damages  for  his  mental  suffering.  In  giv- 

1  Western  Union  Tel.  Co.  v.  Kirkpatrick,  76  Tex.  217 ;  s.  c,  13  S.  W.  Rep. 
70.  It  should  be  added  that,  under  the  Texas  procedure  an  action  is 
properly  brought  by  the  husband  alone  for  injury  to  his  wife. 

2  Western  Union  Tel.  Co.  v.  Moore,  76  Tex.  66;  s.C,  12  S.  W.  Rep.  949. 
s  Western  Union  Tel.  Co.  v.  Brown,  71  Tex.  723;  s.  C,  10  S.  W.  Rep. 

323;  2L.  R.  A.  776. 


INJURY    TO    THE    FEELINGS.  381 

ing  the  opinion  of  the  court,  Henry,  J.,  said: 
"When  such  communications  relate  to  sickness  and 
death,  there  accompanies  them  a  common-sense  sug- 
gestion that  they  are  of  importance,  and  that  the 
persons  addressed  have  in  them  a  serious  interest. 
It  would  be  an  unreasonable  rule,  and  one  not  com- 
porting with  the  uses  of  the  telegraph,  to  hold  that 
the  dispatcher  will  be  released  from  diligence  unless 
the  relations  of  the  parties  concerned,  as  well  as  the 
nature  of  the  dispatch,  are  disclosed.  When  the 
general  nature  of  the  communication  is  plainly  dis- 
closed by  its  terms,  instead  of  requiring  the  sender 
to  communicate  to  the  unwilling  ears  of  the  oper- 
ator the  relationship  of  the  parties  concerned,  a 
more  reasonable  rule  will  be,  when  the  receiver  of 
the  dispatch  desire  information  about  such  matters, 
for  him  to  obtain  it  from  the  sender,  and,  if  he  does 
not  do  so,  to  charge  his  principal  with  the  informa- 
tion that  inquiries  would  have  developed."1  Turn- 
ing to  the  other  side  of  the  picture,  we  find  it  held 
in  Indiana,  in  a  case  where  the  telegraph  company 
failed  for  twenty  days  to  deliver  the  following  mes- 
sage addressed  by  the  plaintiff  to  the  husband  of 
his  wife's  sister:  "My  wife  is  very  ill;  not  expected 
to  live," —  that  the  sender  of  the  message,  though 
suffering  no  pecuniary  loss,  is  entitled  to  compensa- 
tion for  the  mental  anguish  he  suffered  consequent 
on  its  non-delivery,  as  the  message  was  notice  to 
the  company  that  mental  anguish  would  probably 
come  to  some  one  if  not  promptly  delivered.2 


1  Western  Union  Tel.  Co.  v.   Adams,  75  Tex.  531;  s.  c,  6  L.  R.  A. 
844;  12  S.  W.  Rep.  857. 

2  Reese  v.  Western  Union  Tel.  Co.,  123  Ind.  294;  s.  c,  24  N.  E.  Rep. 
163;  7.  L.  R.  A.  583. 


382        ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

§  388.  Further  Views  as  to  the  Measure  of  Dam- 
ages in  Such  Cases. — It  has  been  reasoned,  in  a  case 
where  the  message  alleged  to  have  been  delayed  in- 
formed the  plaintiff  of  the  probable  death  of  his 
wife,  that  the  recovery  is  measured  by  a  proper 
compensation  for  the  disappointment  and  anguish 
suffered  by  the  plaintiff's  inability  to  be  with  his 
wife  before  her  death,  no  punitive  damages  nor 
damages  for  the  grief  naturally  arising  from  the 
wife's  death  being  allowed.1  Under  the  Code  of 
Civil  Procedure  of  Texas,  a  husband  can  sue  for  in- 
juries of  body  and  mind  sustained  by  his  wife  on 
account  of  the  failure  of  a  telegraph  company  to  de- 
liver a  message  to  summon  a  physician,  but  if  he 
sues  in  right  of  his  wife,  he  cannot  recover  on  his 
own  account  for  his  own  anxiety  and  sympathy.2 
In  the  same  State  a  general  demurrer  to  the  petition, 
in  an  action  for  damages  against  a  telegraph  com- 
pany, is  properly  sustained,  where  the  only  damage 
sustained  is  the  mental  and  physical  suffering  of 
the  plaintiff  and  his  wife,  resulting  from  the  defend- 
ant's failure  to  deliver  a  message  relating  to  the 
health  of  the  plaintiff's  mother-in-law,  his  wife's 
mother.3  Nor,  in  such  a  case,  are  damages  for  mere 
continued  anxiety  caused  by  such  failure,  recoverable.4 
In  a  recent  case  in  Tennessee,  where  it  appeared 
that,  by  reason  of  a  telegraph  company's  negligent 

1  Beasley  v.  Western  Union  Tel.  Co.,  39  Fed.  Rep.  181. 

2  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  s.  c,  10  Am.  St. 
Rep.  772;  1  L.  R.  A.  728;  9  S.  W.  Rep.  598.  That  the  wife  is  not  a 
necessary  party,  the  court  cite  Texas,  etc.  R.  Co.  v.  Burnett,  61  Tex. 
638;  San  Antonio,  etc.  R.  Co.  v.  Helm,  64  Tex.  147. 

3  Rowell  v.  Western  Union  Tel.  Co.,  75  Tex.  26;  s.  C,  12  S.  W.  Rep. 
534, 

4  Ibid.  This  unsatisfactory  decision  attempts,  but  without  success  to 
distinguish  the  previous  decision  of  the  same  court  in  Stuart  v.  Western 
Union  Tel.  Co.,  66  Tex.  580. 


INJURY    TO    THE    FEELINGS.  383 

delay  in  the  transmission  and  delivery  to  a  sister  of 
messages  informing  her  of  the  serious  illness,  and, 
later,  of  the  death  of  her  brother,  she  was  denied 
the  opportunity  of  attending  him  and  making  prep- 
arations for  his  funeral,  it  was  held  that  the  dam- 
ages might  include  such  sum  as  would  compensate 
for  the  grief,  disappointment,  and  other  injury  to 
her  feelings.1 

§  389.  Failure  to  deliver  a  Telegram  calling  a 
Physician  in  a  Case  of  Confinement. — Where  the  tele- 
gram was  addressed  to  a  physician  by  a  husband 
whose  wife  was  about  to  be  confined,  asking  him  to 
come  at  once,  and  to  bring  the  physician's  wife, 
who  was  the  sister  of  the  patient, — it  was  ruled  that 
the  fact  that  the  child  died  before  birth,  and  that 
grief  and  sorrow  were  thereby  occasioned  to  the 
mother,  could  not  be  regarded  as  an  element  of 
damage.  The  court  said:  "If  it  is  made  to  appear, 
from  the  testimony,  that  Mrs.  Cooper  suffered  more 
physical  pain,  mental  anxiety,  and  alarm  on  ac- 
count of  her  own  condition  than  she  would  have 
done  if  Doctor  Keating  had  been  in  attendance  upon 
her,  and  the  failure  to  secure  his  services  is  shown 
to  be  due  to  the  want  of  proper  care  on  the  part  of 
defendant's  servants,  whose  duty  it  was  to  deliver 
the  message,  a  fair  and  reasonable  compensation 
should  be  allowed  for  such  increased  pain  and 
mental  suffering;  but  the  death  of  the  child — the 
bereavement  of  the  parents  and  their  grief  for  its 
loss, — cannot  be  considered  as  an  element  of  dam- 
ages. Such  damages  are  too  remote;  they  are  the 
result  of  a  secondary  cause,  and  ought  not  to  be 


1  Wadsworth  v.  Western  Union  Tel.  Co.,  86  Tenn.  695;  3.  C,  6  Am. 
St.  Kep.  864;  8  S.  W.  Rep.  r>74  (I.urton  and  Folkes,  J.J.,  dissenting). 


384       ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

allowed  to  enter  into  a  verdict.  This  is  not  an 
action  under  the  statute  by  the  parents  for  the  death 
of  a  child,  and  if  it  were,  injury  to  th.e  feelings  of 
the  parent  could  not  be  a  basis  of  recovery  by  them.1 
Injury  to  the  mother  alone,  her  physical  pain  and 
mental  suffering  because  of  her  own  condition, 
would  be  a  proper  consideration,  and  it  would  be 
correct  to  allow  proof  that  the  child  was  still-born, 
if  such  fact  tended  to  show  that  the  labor  was 
thereby  prolonged,  ai^fl  her  suffering  so  increased."  2 

§  390.  Difference  between  Quantity  of  Pain  Suf- 
fered and  Quantity  which  would  have  been  Suffered. 
— In  the  case  above  stated,  an  instruction  was  ap- 
proved which  distinguished  the  increase  of  suffer- 
ing, caused  by  the  non-attendance  of  the  doctor, 
from  the  pain  which  the  plaintiffs  wife  would  have 
suffered,  if  he  had  attended  her, — the  court  saying: 
"If  the  servants  of  the  company  were  in  fact  negli- 
gent, and,  by  reason  of  such  negligence,  the  pain 
and  suffering  of  Mrs.  Cooper  were  aggravated  and 
prolonged,  she  could  only  recover  for  such  aggra- 
vated and  prolonged  suffering,  as  distinguished 
from  the  suffering  she  would  have  encountered  in 
case  there  had  been  no  such  negligence,  and  Doctor 
Keating  had  arrived  in  time  to  have  waited  on 
her."3 

§  391.  What  if  the  Doctor  could  not  have  Reached 
the  Patient  in  any  Event. — In  such  an  action,  it  was 
held  that  the  court  should  have  instructed  the  jury, 
that  if  the  doctor  could  not  have  reached  the  patient 

1  Citing  3  Wood  Railw.  Law,  1538,  and  note  3. 

2  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  s.  c,  10  Am.  St. 
Rep.  772. 

3  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  s.  c,  10  Am.  St. 
Rep.  772. 


INJURY    TO    THE    FEELINGS.  385 

in  time  to  have  attended  her  confinement,  even  if 
there  had  been  no  negligence  on  the  part  of  the  de- 
fendant in  delivering  the  message,  no  recovery 
could  be  had  for  the  pain  and  suffering  resulting  to 
her  by  reason  of  the  fact  that  he  was  not  present  to 
aid  in  the  delivery  of  the  child.1 

§  392.  Damages  for  Failure  of  Husband  to  At- 
tend his  Wife  in  Case  of  Confinement. — In  England, 
a  husband  never  attends  upon  his  wife  in  case  of 
her  confinement,  but  is  always  excluded  from  the 
apartment,  and  she  is  remitted  to  the  care  of  the 
surgeon,  or  the  midwife,  and  the  female  attendants. 
But  wTe  have  progressed  so  far  in  this  country  from 
the  barbarous  habits  of  our  English  brethren,  that 
with  us  it  has  been  judicially  ascertained  that  the 
services  of  the  husband  on  such  an  interesting  and 
important  occasion  may  be  absolutely  necessary  to 
save  the  wife  from  incurable  injury.  Thus,  where 
a  telegram  was  sent  by  a  wife  about  to  be  confined, 
to  summon  her  husband,  and  by  reason  of  a  negli- 
gent delay  of  twenty-four  hours  in  its  delivery  he 
did  not  arrive,  whereby  the  complaint  alleged  that 
she  suffered  more  physical  pain,  mental  anxiety  and 
alarm  on  account  of  her  condition,  and  sustained 
permanent  and  incurable  injury  for  want  of  his 
presence  and  services,  it  was  held  that  such  dam- 
ages were  not  too  remote." 

§    393.      Quantum    of  Damages   for  Mental    Suffer- 
ing.— Where  the  telegram  announced   the  sending 

1  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  r>07;  S.  C,  10  Am.  St. 
Rep.  772. 

*  Thompsou  v.  Western  Union  Tel.  Co.,  107  N.  C.  449;  8.  C,  12  S.  E. 
Rep.  427.  The  account  given  by  Mrs.  Thompson  as  to  all  she  suffered 
through  the  delay  of  her  husband  in  getting  there,  although  the  doctor 
and  her  sister-in-law  were  with  her,  is  truly  pathetie. 

(25) 


386        ACTIONS    AGAINST    TELEGEAPH    COMPANIES. 

of  the  corpse  of  the  plaintiff's  wife,  and  the  servant 
of  the  company  who  received  the  dispatch  for  trans- 
mission knew  the  special  circumstances,  and  the 
dispatch  travelled  with  only  the  customary  speed  of 
the  company,  in  consequence  of  which  the  corpse 
got  there  first,  the  court  held  that  a  verdict  for 
$1,168  was  not  excessive.1  Where  the  plaintiff,  a 
widow,  was  far  from  home  with  the  dead  body  of 
her  husband,  and  telegraphed  for  a  remittance  of 
money  to  enable  her  to  leave  with  it,  but,  in  conse- 
quence of  the  delay  in  transmitting  the  message, 
was  delayed  two  days, — the  court  refused  to  disturb 
a  verdict  for  $1,000> 

1  Western  Union  Tel.  Co.  v.  Broesche,  72  Tex.  654;  s.  c,  10  S.  W.  Rep. 
734. 

2  Western  Union  Tel.  Co.  v.  Simpson,  73  Tex.  422 ;  s.  C,  11  S.  W.  Rep. 
385. 


MISCELLANEOUS    MATTERS.  387 


Article  VI.—  MISCELLANEOUS  HOLDINGS. 

Section. 

398.  Exemplary  Damages,  when  Given. 

399.  Financial  Condition  of  Sender. 

400.  A  Case  where  ''Liberal  Damages"  were  Allowed. 

401.  Damages  under  the  Wisconsin  Statute. 

402.  Special  Damages  must  be  Alleged  and  Proved. 

403.  Further  as  to  Proof  of  Damages. 

404.  Claiming  One  Kind  of  Damage  of  the  Company  and  Recovering 

Another. 

§  398.      Exemplary   Damages,    when  Given. — Cases 

may  obviously  arise  where  exemplary  damages  may 
be  given  against  a  telegraph  company  for  failing  to 
deliver  a  message.  It  was  ruled  in  a  recent  case  in 
Kansas,  that,  where  it  is  established  that  there  was 
such  gross  negligence  on  the  part  of  the  agents  of  the 
telegraph  company  as  to  indicate  wantonness  or  a 
malicious  purpose  in  failing  to  transmit  and  deliver 
a  message,  then  the  plaintiff  would  be  entitled  to 
exemplary  damages.1  But  here,  by  analogy  to  a 
rule  already  stated,2  the  rule  is  that  no  exemplary 
damages  can  be  recovered  where  no  actual  damages 
are  shown.3     Moreover,  in   order  to  justify  exem- 

1  West  v.  Western  Union  Tel.  Co.,  39  Kan.  93;  s.  C,  7  Am.  St.  Rep. 
530;  7  Pac.  Rep.  807.    See  Scott  &  Jam.  Tel.  §§  417,  418. 

2  Ante,  §  382. 

3  Shippell  v.  Norton,  38  Kan.  507.     Compare  as  to  exemplary  damages 
Southern  Kansas  R.  Co.  v.  Rice,  38  Kan.  398;  Flanagan  v.  Womack,  54 


388        ACTIONS AG A  INST    TELEGRAPH    COMPANIES. 

plary  damages,  it  will  often  be  as  important,  and 
generally  more  so,  that  the  company  should  have 
notice  of  the  special  circumstances  which  require 
urgency;  for  the  existence  of  gross  negligence,  wan- 
tonness, or  malice,  which  are  the  essential  foundation 
of  this  species  of  damage,  will  quite  as  often  depend 
upon  the  fact  of  the  company  having  knowledge  of 
the  importance  of  the  message  as  in  cases  of  actual 
damage, — and  this,  although  the  theory  on  which 
exemplary  damages  are  given  is  quite  different.  It 
has  been  held  in  Texas,  that  the  plaintiff  is  not  prej- 
udiced or  restricted  as  to  the  amount  of  actual 
damages  which  he  may  recover,  by  the  fact  that,  in 
the  claim  presented  by  him  to  the  company,  he 
classified  the  amount  of  his  damages  as  actual  and 
exemplary.1 

§  399.  Financial  Condition  of  Sender. — It  has 
been  held  that  evidence  of  the  embarrassed  financial 
condition  of  the  sender  of  the  message  is  not  admis- 
sible, as  bearing  on  the  question  of  damages  for  loss 
of  the  bargain.2 

§  400.  A  Case  where  "Liberal  Damages"  were 
Allowed. —  In  an  Ohio  case,  the  court  said:  "We 
admit,  as  a  general  rule,  that  the  measure  of  dam- 
ages for  a  breach  of  contract  is  the  amount  of  loss 
really  sustained  by  the  injured  party;  but  in  the 
application  of  this  rule  a  liberal  course  may  be  pur- 
sued, whenever  the  violation  of  an  agreement  is 
proved  to  have  been  willful  or  causeless  on  the  part 

Tex.  45;  Freese  v.  Tripp.  70  111.  49G;  Gulf,  etc.  R.  Co.  v.  Levy,  59  Tex. 
563;  S.  c.  40  Am.  Rep.  27S. 

1  Western  Union  Tel.  Co.  v.  Morris,  77  Tex.  173;  S.  C,  13  S.  W.  Rep. 

sss. 

2  Western  Union  Tel.  Co.   v.   Way,  83  Ala.  512;  s.  C,  4  South.  Rep. 
S44. 


MISCELLANEOUS    MATTERS.  389 

of  the  defendant."  The  plaintiff  was  engaged  in 
Cincinnati  as  a  commercial  news-agent,  and  engaged 
in  furnishing  to  his  customers  financial  news  and 
reports,  from  New  York  city,  of  the  state  of  the 
market.  He  alleged  that  the  defendant,  a  telegraph 
company,  wrongfully  and  maliciously  intending  to 
injure  him  in  his  business,  purposely  delayed  the 
sending  and  delivering  to  him  of  messages  sent  by 
his  agents,  giving  precedence  to  a  rival  commercial 
news-agency.  It  was  claimed  that  the  damages 
allowed  by  the  jury — $3,000 — were  excessive;  that 
the  greatest  estimate  of  the  actual  damages  sus- 
tained would  not  be  more  than  $450.  The  court 
was  satisfied  that  the  verdict  was  greatly  in  excess 
of  the  damages  the  plaintiff  really  sustained;  and, 
while  it  reduced  the  amount  by  a  remittitur  of 
$2,000,  said:  "It  is  evident  that  the  mere  allow- 
ance of  the  amount  of  loss  the  plaintiff  proved  he 
actually  sustained,  would  not,  in  justice,  remunerate 
him  for  the  violation  by  the  defendant  of  its  agree- 
ment, and  the  jury  might  very  properly  have  given 
an  additional  sum.1 

§  401.  Damages  Under  the  Wisconsin  Statute. — 
The  statute  of  Wisconsin2  providing  that  telegraph 
companies  shall  be  "liable  for  all  damages  occa- 
sioned by  failure  or  negligence  of  their  operators, 
servants,  or  employees  in  receiving,  copying,  trans- 
mitting, or  delivering  dispatches  or  messages," 
renders  them  liable  for  damages  resulting  directly 
from  their  negligence  in  transmitting  messages; 
especially  where  the  agent  knows  the  contents  and 
significance  of  the  message.     Items  of  expense  to 

1  Davis  v.  Western  Union  Tel.  Co.,  1  Cin.  Superior  Ct.  100. 

2  Laws  Wis.  1885,  ch.  171. 


390         ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

which  the  plaintiff  may  have  been  put,  in  order  to  be 
recoverable  from  the  company,  must  be  shown  to 
have  been  incurred  because  of  the  failure  to  trans- 
mit the  message  seasonably;  and  it  is  held  that,  in 
the  absence  of  such  proof,  there  could  be  a  recovery 
only  for  the  amount  paid  for  the  message.1 

§  402.  Special  Damages  must  be  Alleged  and 
Proved. — In  these  actions,  the  damages  sustained 
through  the  negligence  or  willful  failure  of  the  com- 
pany to  transmit  and  deliver  the  message  promptly 
and  correctly,  fall  within  the  class  of  damages  which 
the  law  books  usually  denominate  special  or  conse- 
quential .  The  well-known  rule  is  that  such  dam- 
ages must  be  both  alleged  and  proved.  In  these 
cases,  unless  the}'  are  both  alleged  and  proved,  the 
plaintiff  can  recover  no  more  than  the  cost  of  send- 
ing the  message,2 — except,  of  course,  where  he  sues 
under  a  statute,3  or  upon  a  contract  which  liqui- 
dates damages.  He  cannot,  for  instance,  recover 
damages  for  mental  anguish,  unless  he  both  alleges 
and  proves  the  special  circumstances  rendering  a 
prompt  performance  of  the  duty  assumed  by  the 
defendant  of  more  than  ordinary  importance.4 

§  403.  Further  as  to  Proof  of  Damages.  —  The 
burden  is,  then,  on  the  plaintiff  to  prove  the  amount 
of  his  loss,  and  the  law  will  not  help  him  out  by  the 
aid  of  surmises  or  conjectures.     If  he  claims  dam- 

1  Cutts  v.  Western  Union  Tel.  Co.,  71  Wis.  46;  s.  c,  3G  N.  W.  Rep. 
627. 

2  Cutts  v.  Western  Union  Tel.  Co.,  71  Wis.  46;  s.  c,  36  N.  W.  Rep. 
627. 

3  Ante,  §  157  et  seq. 

4  The  mental  anguish  in  this  case  was  that  which  naturally  flows  from 
the  non-delivery  of  a  dispatch  asking  for  a  remittance  of  money. 
Western  Union  Tel.  Co.  v.  Simpson,  73  Tex.  423;  s.  c,  11  S.  W.  Rep. 
385. 


MISCELLANEOUS    MATTERS.  391 

ages  on  the  ground  that  the  failure  to  deliver  the 
dispatch  resulted  in  his  losing  a  job  of  work,1  and 
it  appears  that  he  earned  something  during  the  time 
the  job  would  have  lasted,  he  must  show  what  he 
earned;  for  nbn  constat  but  he  may  have  earned 
more  than  the  amount  which  he  would  have  under 
the  job  which  he  lost.2  In  another  case  already 
noticed,  it  was  held  that  the  failure  to  deliver  a  tele- 
graphic message  summoning  a  physician  to  attend 
the  sender's  wife,  who  died  a  few  days  thereafter, 
will  not  entitle  the  sender  to  recover  for  the  loss  of 
his  wife's  services,  in  the  absence  of  evidence  tend- 
ing to  show  that  she  would  not  have  died  if  the 
message  had  been  promptly  delivered.3  In  another 
case  the  plaintiff,  a  merchant  of  St.  Louis,  had  a 
lot  of  coonskins  stored  with  a  dealer  in  New  York 
city.  Pursuant  to  plaintiffs  request,  the  New  York 
dealer  telegraphed  the  price  of  such  skins  as  ' 'sixty- 
two  and  one-half  cents. ' '  This  message  was  errone- 
ously transcribed  b\  the  telegraph  operator  as  "sixty- 
five  and  one-half  cents,"  and  on  receipt  of  it  plaint- 
iff ordered  the  sale  of  the  skins.  In  the  action  to 
recover  the  difference  between  the  two  amounts  on 
the  whole  lot  of  skins,  plaintiff  failed  to  prove  the 
sale  as  ordered.  In  other  words,  he  failed  to  prove 
that  he  had  been  misled  by  the  mistake  into  selling 
his  coonskins  at  less  than  the  market  price,  or  at  all. 
It  was,  of  course,  held  that  he  could  recover  only 
the  cost  of  sending  the  message  with  interest.4  In  still 
another  case  the  plaintiff's  agent  telegraphed  him 

1  Ante,  §  346  et  seq. 

2  Western  Union  Tel.  Co.  v.  Longwill  (N.  M.),  21  Pac.  Rep.  3:5'.). 

3  Western  Union  Tel.  Co.  v.  Kendzora,  77  Tex.  257 ;  s.  c,  13  S.  W.  Rep. 
986. 

4  Levy  v.  Western  Union  Tel.  Co.,  35  Mo.  App.  170. 


392         ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

the  price  at  which  he  could  buy  apples,  but,  owing 
to  a  mistake  by  the  telegraph  company  in  the  ad- 
dress and  signature,  the  plaintiff  paid  no  attention 
to  it.  The  price  of  apples  advanced,  and  the  plaint- 
iff was  obliged  to  pay  more  than  the  price  named  in 
the  telegram.  In  an  action  for  damages,  there  was 
no  evidence  of  any  difference  between  the  cost  of  a 
car-load  at  the  price  named  and  the  value  of  the 
same  in  the  same  market  at  the  same  time.  It  was 
held  that  only  the  amount  paid  for  the  telegram 
could  be  recovered.1  This  case  would  seem  to  have 
been  correctly  decided  on  another  ground.  It  would 
seem  to  fall  within  the  rule,  or  exception  which  ex- 
cludes recovery  for  uncertain  and  contingent  profits. 
Even  if  there  had  been  evidence  of  the  value  of  the 
apples  by  the  car-load  on  the  da}^  named,  non  con- 
st"! that  the  plaintiff  would  have  bought  them.  He 
might  and  he  might  not.  He  may  not  have  had 
the  money  to  buy  them,  or  other  reasons  may  have 
operated  to  induce  him  not  to  buy,  although  the 
market  may  have  been  favorable.  v 

§  404.  Claiming-  One  Kind  of  Damages  of  the  Com- 
pany and  Recovering  Another.  —  It  has  been  held 
that  where  the  sender  of  a  telegram  presents,  in  ac- 
cordance with  the  contract  with  the  telegraph  com- 
pany, a  claim  for  damages  for  failure  to  deliver  the 
message,  and  classifies  the  damages  as  "$50  actual 
damage,  and  $5,000  exemplary  damage,"  such 
classification  does  not  prejudice  him  so  as  to  prevent 
his  recovering  over  $50  in  actual  damage,  and  noth- 
ing as  exemplary  damage.2 

1  Pennington  v.  Western  Union  Tel.  Co..  G7  Iowa,  631 ;  s.  c,  5G  Am. 
Rep.  367. 

2  Western  Union  Tel.  Co.  v.  Morris,  77  Tex.  173;  S.  C.  13  S.  W.  Rep. 

888. 


DUTY    TO    MITIGATE    DAMAGES.  393 


CHAPTER   XII. 

CONTRIBUTORY  FAULT  OF  THE  PLAINTIFF. 

Section. 

410.  Duty  of  the  Person  Damaged,  on  Discovering  the  Failure  of  the 

Company. 

411.  How  Damages  Affected  by  Subsequent  Action  of  Plaintiff. 

412.  Case  where  the  Plaintiff  was  Exonerated  from  Charge  of  Subse- 

quent Negligence. 

413.  When  not  Bound  to  Notify  Company  of  Error. 

414.  Reselling  and  Charging  Company  with  Difference. 

415.  Plaintiff  not  Bound  to  Invest  Further  Money. 

416.  Contributory  Negligence  of  the  Sender. 

417.  Contributory  Negligence  of  the  Person  Receiving  the  Message. 

§  410.  Duty  of  Person  Damaged,  on  Discovering 
the  Failure  of  the  Company. — It  is  said  that  "the 
law,  for  wise  reasons,  imposes  upon  a  party  sub- 
jected to  injury  from  a  breach  of  contract,  the 
active  duty  of  making  reasonable  exertions  to  ren- 
der the  injury  as  light  as  possible.  Public  interest 
and  sound  morality  accord  with  the  law  in  de- 
manding this;  and  if  the  injured  party,  thro,ugh 
negligence  or  willfulness,  allows  the  damages  to  be 
unnecessarily  enhanced,  the  increased  loss  justly 
falls  upon  him."  ' 

§  411.  How  Damages  Affected  by  Subsequent  Ac- 
tion  of   Plaintiff. — What  the   measure   of  damages 

1  Hamilton  v.  McPherson,  28  N.  Y.  72,  76. 


394  CONTRIBUTORY    FAULT    OF    PLAINTIFF. 

would  be  in  a  case  where  a  telegraph  company  had 
made  an  error  in  the  transmission  of  a  message,  and 
how  such  damages  might  be  affected  by  the  subse- 
quent action  of  the  plaintiffs;  is  so  fully  set  out  in 
the  syllabus  of  a  Virginia  case  that  we  give  all  that 
portion  of  it  necessary  to  understand  the  ruling  of 
the  court  on  this  subject :  "In  an  action  against  a 
telegraph  company  for  damages  sustained  by  the 
plaintiffs  in  consequence  of  a  mistake  in  the  trans- 
mission of  a  message  sent  on  their  line,  whereby  an 
order  to  the  plaintiffs'  factors,  in  Mobile,  to  buy 
five  hundred  bales  of  cotton,  was  altered  to  twenty- 
five  hundred,  *  *  *  and  the  factors  having  bought 
two  thousand  and  seventy-eight  bales  of  cotton  be- 
fore the  mistake  in  the  message  was  ascertained,  if 
the  company  is  liable  to  the  plaintiffs  for  the  dam- 
ages arising  from  the  alteration  of  the  message,  the 
commissions  of  the  factors  upon  the  purchase  of  the 
cotton  are  a  part  of  the  damages  for  which  the  com- 
pany is  liable,  and  the  plaintiffs  are  not  bound  to 
accept  any  offer  of  the  company  to  pay  the  damages 
which  excludes  these  commissions.  In  such  case,  if 
the  company  is  liable  to  the  plaintiffs  for  damages 
arising  from  the  alteration  of  such  message,  the 
measure  of  these  damages  is  what  was  lost  on  the 
sale,  at  Mobile,  of  the  excess  of  the  cotton  above 
that  ordered ;  or,  if  not  sold  there,  what  would 
have  been  the  loss  on  the  sale  of  the  cotton  at 
Mobile  in  the  condition  and  circumstances  in  which 
it  was  when  the  mistake  was  ascertained,  including 
in  such  loss  all  the  proper  costs  and  charges  thereon. 
When  the  mistake  was  ascertained,  a  part  of  the 
cotton  was  on  board  of  a  ship,  to  be  sent  to  Liver- 
pool ;  a  part  was  under  a  contract  of  affreightment 


DUTY    TO    MITIGATE    DAMAGES.  395 

to  the  same  place,  but  not  on  board.  The  whole 
should  have  been  sold  as  it  was  at  Mobile  ;  and  the 
plaintiffs  having  sent  it  to  Liverpool  and  sold  it 
there,  the  loss  of  the  company  is  not  to  be  increased 
by  this  act  of  the  plaintiffs,  but  must  be  based  upon 
an  estimate  of  what  it  would  have  sold  for, — a  part 
on  shipboard,  and  a  part  under  contract  of  affreight- 
ment. If  the  plaintiffs  sent  the  cotton  to  Liverpool 
for  purposes  of  speculation,  with  the  intention  of 
taking  to  themselves  the  profits,  if  any,  and,  in  the 
event  of  a  loss,  visiting  the  loss  on  the  company, 
they  are  not  entitled  to  recover  for  any  loss  sustained 
upon  it.  But  if  the  plaintiffs  sent  the  cotton  to 
Liverpool,  not  with  the  purpose  of  taking  the  profits, 
if  any,  but  only  to  indemnify  themselves  out  of  the 
proceeds  to  the  extent  of  the  cost  and  the  obliga- 
tions incurred  by  them,  they  do  not  thereby  lose 
their  right  to  recover  from  the  company  the  dam- 
ages which  they  would  have  sustained  if  the  cotton 
had  been  sold  at  Mobile.  The  plaintiffs,  if  they 
intended  to  hold  the  company  responsible  for  the  ex- 
cess of  the  cotton  purchased,  should,  as  soon  as  they 
were  apprised  of  the  purchase,  have  notified  the  com- 
pany of  such  intention;  should  have  made  a  tender  of 
such  excess  to  the  company,  on  the  condition  of  its 
paying  the  price  and  all  the  charges  incident  to  the 
purchase;  and  also  that,  in  case  of  its  refusal  to  accept 
said  tender  and  comply  with  its  conditions,  they 
would  proceed  to  sell  such  excess  at  Mobile,  and, 
after  crediting  said  company  with  the  net  profits, 
would  look  to  it  for  the  difference  between  the 
amount  of  such  proceeds  and  the  cost  of  the  excess, 
including  all  proper  charges  ;   and,  upon  the  failure 


396  CONTRIBUTORY    FAULT    OK    PLAINTIFF. 

of  the  company,  after  notice,  to  accede  to  "their 
offer,  they  should  have  proceeded  accordingly."  ' 

§  412.       Continued  :      Case  where  the   Plaintiff  was- 
Exonerated  from  Charge  of  Subsequent  Negligence. — 

In  a  New  York  case,  a  portion  of  the  opinion  in 
which  we  have  heretofore  quoted,2  it  appeared 
that  a  telegram  was  sent  by  an  agent  of  the 
plaintiffs  at  Chicago  to  another  agent  of  the 
plaintiffs  at  Oswego,  ordering  him  to  send  to  Chi- 
cago five  thousand  sacks  of  salt.  By  the  negligence 
of  the  telegraph  company  in  transcribing  it,  the  tel- 
egram, as  delivered,  ordered  him  to  send  to  Chicago 
five  thousand  casks  of  salt.  The  term  "sacks,"  in 
the  salt  trade,  designates  fine  salt,  in  sacks  con- 
taining fourteen  pounds,  and  the  term  "casks" 
designates  coarse  salt,  in  packages  containing  not 
less  than  three  hundred  and  twenty  pounds.  He 
accordingly  chartered  a  vessel,  put  twenty-seven 
hundred  and  thirty-three  barrels  of  coarse  salt  on 
board.  The  bill  of  lading  was  made  out  and  deliv- 
ered; and  the  master  of  the  vessel  had  received  his 
clearance,  when  the  plaintiffs'  agent  received  a  tel- 
egram apprising  him  of  the  mistake.  At  this  time, 
which  was  in  the  afternoon,  the  agent  knew  that 
the  vessel  had  finished  loading,  and  supposed  that 
she  had  left  the  harbor,  as  vessels  at  that  season 
usually  hurried  their  departure  ;  but  he  made  no 
effort  to  ascertain  with  certainty.  In  fact,  the  ves- 
sel did  not  sail  till  five  o'clock  the  next  morning. 
It  was  claimed  by  the  defendants  that  the  plaintiffs' 
agent  was  guilty  of  negligence  in  not  stopping  and 
unloading    the    vessel,  after   he    had    received  the 

1  Wasbiugton,  etc.  Tel.  Co.  v.  Hobson,  15  Gratt.  (Va.)  122. 

2  L.  onard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544. 


DUTY    TO    MITIGATE    DAMAGES.  397 

plaintiffs'  dispatch  correcting  the  error,  and  thus 
avoiding  most  of  the  damage  which  plaintiffs  sus- 
tained. But  the  court  held  that  the  plaintiffs' 
agent  was  only  bound  to  ordinary  diligence ;  that, 
in  relying  upon  the  facts  which  he  knew  concerning 
the  vessel,  and  supposing  she  had  actually  sailed, 
he  had  exercised  it ;  and  that  he  was  not  guilty  of 
such  negligence  as  would  relieve  the  defendants 
from  full  liability  for  their  negligence. 

§  413.  Wheii  not  Bound  to  Notify  Company  of 
Error. — In  another  case,  by  an  error,  the  message  as 
received  read  "five  hundred,"  instead  of  "five  Hud- 
son," as  sent,  and  the  plaintiffs'  agent,  to  whom  it 
was  directed,  purchased  five  hundred  shares  of 
Michigan  Southern  stock,  instead  of  a  like  number 
of  Hudson  River  Railroad  stock,  which  was  meant 
by  the  parties  telegraphing,  and  immediately  after 
the  purchase  the  agents  notified  the  senders  of  the 
message,  who,  without  notifying  the  telegraph  com- 
pany of  the  error  which  had  occurred,  took  immedi- 
ate steps  to  correct  its  effects,  so  far  as  they  could. 
It  was  said  by  the  court  that  they  knew  of  no  rule 
of  law  that  required  the  plaintiffs  to  notify  the  de- 
fendants of  the  error.  When  the  plaintiffs  were 
notified  of  the  error,  the  damage  had  already  been 
done^  and  they  had  the  right  at  once  to  sue  the  de- 
fendants, and  the  suit  could  not  be  defeated  either 
by  a  tender  of  the  stock  or  the  damages.1 

1  Rittenhouse  v.  Independent  Line  of  Telegraph,  44  N.  Y.  263  (affirm- 
ing 1  Daly,  474).  In  the  court  below  it  was  said  that  stock  purchased  in 
consequence  of  such  mistake  should  not  be  sold  without  notice  to  the 
company,  if  the  plaintiffs  desire  to  hold  them  responsible  for  any  loss 
resulting  from  the  sale.  Kittenhouse  v.  Independent  Line  of  Tele- 
graph, 1  Daly  (N.  Y.),  474.  Compare  Washington,  etc.  Tel.  Co.  V.  Eob- 
son,  15  Gratt.  (Va.)  122;  Ante,  §  111. 


398  CONTRIBUTORY    FAULT    OF    PLAINTIFF. 

§  414.  Reselling-  and  Charging  Company  with 
Difference. — The  following  report  of  a  case  in  the 
Supreme  Court  of  New  York '  is  taken  from  Scott  and 
Jarnagin  on  Telegraphs.'1  The  message  delivered  for 
transmission  was  as  follows:  "Philadelphia,  March 
15,  1864.  To  Drexel,  Winthrop  &  Co.  If  the  gold 
bill  is  vetoed,  buy  immediately  one  hundred  thou- 
sand. [Signed]  Smith  &  Randolph."  The  mes- 
sage actually  transmitted  and  delivered  was:  "Phil- 
adelphia, March  15,  1864.  To  Drexel,  Winthrop  & 
Co.  Gold  bill  is  vetoed,  buy  immediately  one  hun- 
dred thousand.  [Signed]  Smith  &  Randolph.1' 
The  complaint  stated  that  Drexel.  Winthrop  &  Co., 
immediately  upon  receipt  of  this  message,  purchased 
$100,000  of  gold  coin  for  $162,225,  and  that  their 
commissions  for  purchasing  were  $125,  and  notified 
the  plaintiffs  thereof  by  telegraph.  The  plaintiffs, 
upon  receipt  of  this  message,  discovering  the  error 
committed  by  the  company,  sent  the  following  dis- 
patch immediately:  "Philadelphia,  March  15,  1864. 
Don't  buy  any  more.  You  had  better  sell  the  hun- 
dred thousand  out  at  once.  The  company  has  made 
the  mistake.  See  the  manager.  [Signed]  Smith  & 
Randolph."  Upon  the  receipt  of  this  message, 
Drexel,  Winthrop  &  Co.  at  once  sold  the  gold  for 
$160,562,  exclusive  of  commissions  for  making  the 
sale.  The  case  was  tried  before  the  court,  without 
a  jury,  and  the  finding  was  in  accordance  with  this 
statement.  It  was  found  that  the  gold  was  bought 
at  the  market  price,  and  sold  at  the  highest  price 
that  could  be  obtained.  The  court  decided  that 
Drexel,  Winthrop  &    Co.,  who    were  brokers,  were 

1  Smith  v.  Independent  Line  of  Telegraph. 

2  Sec.  412,  p.  399,  note. 


DUTY    TO    MITIGATE    DAMAGES.  399 

entitled  to  the  commissions,  which  sum  should  be 
deducted  from  the  gross  proceeds  of  the  sale  ;  and 
that  the  plaintiffs,  by  reason  of  the  neglectful  and 
careless  acts  of  the  defendants,  sustained  damage 
to  the  amount  of  $2,488,  and  gave  judgment  ac- 
cordingly. An  appeal  was  taken  to  the  General 
Term,  with  what  result  is  not  known.  One  of  the 
questions  presented  in  defense  was,  that  if  the  gold 
was  in  fact  purchased  in  reliance  upon  the  erroneous 
message,  and  was  in  the  plaintiffs'  hands  when  the 
error  was  discovered,  it  was  the  duty  of  the  plaint- 
iffs, before  selling,  to  inform  the  defendants  of  the 
error  and  the  purchase,  and  give  the  defendants  an 
opportunity  to  take  the  gold;  and  that,  in  selling; 
the  gold  without  such  notice,  they  deprived  the  de- 
fendants of  the  right  to  assume  the  purchase  and 
indemnify  the  plaintiffs,  and  thereby  ratified  the  er- 
roneous message  and  lost  their  right  of  action  against 
the  defendants. 

§  415.  Plaintiff  not  Bound  to  Invest  Further 
Money. — Certainly,  the  plaintiff  is  not  bound  to  in- 
vest further  money  to  save  himself  from  the  loss 
which  the  company's  negligence  has  entailed  upon 
him,  unless  he  has  the  money  to  invest,  and  unless 
it  is  shown  that  the  circumstances  were  such  that  a 
reasonable  man  would  have  done  so.  This  is  wrell 
illustrated  by  a  case  where  the  plaintiffs  sued  the  de- 
fendant for  delay  in  transmitting  a  telegram  sent  to 
them  by  a  bank  holding  notes  for  collection  for 
plaintiffs  against  a  failing  debtor.  Through  failure 
to  deliver  the  message  promptly,  other  creditors  at- 
tached the  property  of  the  debtors  before  plaintiffs 
received  the  message;  and  the  property,  when  sold 
by  the  sheriff,  brought  less  than  the  amount  of  their 


400  CONTRIBUTORY    FAULT    OF    PLAINTIFF. 

attachmenWliens.  The  court  held  that  the  fact  that 
the  estimated  value  of  the  real  estate  sold  by  the 
sheriff  was  greater  than  the  amount  realized  at  the 
sale,  and  sufficient  to  pay  plaintiffs'  claim,  did  not 
impose  on  the  plaintiffs  the  duty  of  buying  the  same, 
and  discharging  the  prior  liens,  in  the  absence  of 
evidence  that  plaintiffs  were  able  to  do  so,  and  that 
it  was  their  duty,  as  ordinarily  prudent  men,  to  do 
so.1 

§  416.  Further  as  to  Contributory  Negligence  of  the 
Sender. — The  contributory  negligence  of  the  person 
sending  the  message  may  bar  his  right  of  recovery. 
The  Supreme  Court  of  Indiana  has  held  that  a  per- 
son addressing  a  telegram  to  "  Mrs.  La  Fountain, 
Kankakee,"  a  city  of  twelve  thousand  inhabitants, 
and  failing  to  make  the  address  more  definite,  on  the 
company  calling  his  attention  thereto,  is  guilty  of 
contributory  negligence  barring  recovery  of  a  stat- 
utory penalty  for  failure  of  a  company  to  properly 
transmit.2 

§'417.  Contributory  Negligence  of  the  Person 
Receiving-  the  Message. — In  the  case  of  a  mistake  in 
a  message,  which  is  of  such  a  character  as  to  convey 
to  the  receiver  the  suggestion  that  it  is  probably  the 
result  of  mistake,  if  the  receiver  goes  ahead  and  acts 
on  conjecture,  without  having  the  message  repeated 
back,  or  taking  any  other  measure  to  ascertain 
whether  or  not  it  is  a  mistake,  he  will  be  precluded 
by  his  own  negligence  from  recovering  damages, 
under  the  ordinary  rule  of  contributory  negligence. 
This  is  well  illustrated  by  a  case  in  which  the  plaint- 
iff sent  a  dispatch  in  relation  to  certain  bonds  which 

1  Western    Union   Tel.   Co.  v.  Sheffield,  71    Tex.  570;  s.  c,   10  S.  W. 
Rep.  7"»l'. 
-  Western  Union  Tel.  Co.  McDauiel,  103  Ind.  294. 


DUTY   TO    MITIGATE    DAMAGES.  401 

concluded:  "Hatch  says  hold  undoubted."  As 
delivered  the  message  read  :  "  Hatch  says  hold  un- 
doubted." The  plaintiff's  agent,  interpreting  this 
as  an  order  to  sell,  sold  the  bonds  without  having 
the  message  repeated,  or  making  further  inquiry. 
It  was  held  that  the  sale  was  attributable  to  the 
negligence  of  the  plaintiffs  agent  in  omitting  in- 
quiry and  acting  on  conjecture,  and  consequently 
that  there  could  be  no  recovery.1 

1  Hart  v.  Direct,  etc.  Tel.  Co.,  86  N.  Y.  (533. 

r-20) 


402  PARTIES    TO    ACTIONS 


CHAPTER  XIII. 


PARTIES  TO  ACTIONS  AGAINST  TELEGRAPH  COMPANIES. 

Section. 

422.  English  Rule  that  Sender  only  can  Sue. 

423.  Even  in  the  Case  of  Malfeasance. 

424.  Unsoundness  and  Injustice  of  the  English  Rule. 

425.  Exception  where  Sender  is  Agent  of  Addressee. 

426.  American  Rule:  Action  by  Addressee  for  Non-Delivery. 

427.  View  Which  Sustains  the  Right  of  Action  in  the  Addressee. 

428.  Action  by  Addressee  for  Mistake. 

429.  Illustration  of  These  Views. 

430.  When  the  Addressee  must  Sue  in  Tort. 

431.  Where  the  Sender  is  Agent  of  a  Third  Person,  Principal  may 

Sue. 

432.  Although  He  be  an  Undisclosed  Principal. 

433.  So,  where  Sender  is  the  Agent  of  the  Addressee. 

434.  Broker  Transmitting  Message  for  Principal  and  Suing  in  His 

Own  Name. 

435.  Stranger  to  Both  Sender  and  Addressee. 

436.  Importance  of  the  Defendant  having  Notice  of  the  Agency. 

437.  Action  over  by  Sender  for  Damages  Sustained  by  Receiver  and 

Recovered  from  the  Company. 

43S.  Under  Indiana  Statutes  Giving  Penalties. 

439.  Under  Indiana  Statute  Giving  Special  Damages. 

440.  Under  Missouri  Statute  Giving  Special  Damages. 

441.  Under  Mississippi  Statute  Giving  Penalty. 

442.  In  Case  of  Refusal  of  Connecting  Line  to  Forward. 

443.  Husband  Suing  for  Wife — Texas  Code. 

§   422.      English   Rule  that  Sender  only  can  Sue. — 

In  England,  by  analogy  to  the  doctrine  which  ap- 


AGAINST    TELEGRAPH    COMPANIES.  403 

plies  in  respect  to  common  carriers  and  other  bailees, 
it  is  held  that  no  action  will  lie  against  a  telegraph 
company  by  the  person  addressed  for  the  mis-de- 
livery of  a  telegram  or  error  in  its  transmission, 
unless  there  is  either  a  contract  between  him  and 
the  company,  or  fraud  on  the  part  of  the  company 
in  respect  of  the  duty  which  it  has  assumed.1 

§  423.  Even  in  the  Case  of  Malfeasance* — Under 
the  English  rule,  the  company  will  not  be  liable  to 
the  receiver  of  a  telegram,  even  for  misfeasance. 
This  is  shown  by  a  case  where  the  plaintiffs,  mer- 
chants at  Valparaiso,  received  a  message  errone- 
ously directed  to  them  by  the  company's  agent, 
purporting  to  come  from  their  branch  house  at  Liv- 
erpool, instructing  them  to. ship  barley,  and  did  so, 
and  great  pecuniary  loss  resulted  in  consequence  of 
a  fall  in  the  market.  The  message  was,  in  fact, 
neither  sent  by  their  Liverpool  branch  nor  intended 
for  the  plaintiffs,  but  was  sent  by  another  Liverpool 
firm  to  their  correspondent  at  Valparaiso.  It  was 
held  that  the  plaintiffs  owed  the  defendants  no  duty 
growing  out  of  contract,  as  the  only  contract  made 
was  with  the  person  employing  them  to  send  the 
message,  nor  were  they  liable  by  reason  of  negli- 
gence; because,  said  Cotton,  L.  J.:  "It  is  impossi- 
ble to  suppose  that  the  company,  in  the  ordinary 
course  of  their  business,  warrant  that  the  message 
comes  from  a  particular  person,  for  they  would 
thereby  make  a  representation  of  the  truth  of  which, 


1  Dickson  v.  Reuter's  Tel.  Co.,  2  C.  P.  Div.  62;  s.  C,  46  L.  J.  (C.  P. 
Div.)  11)7;  35  L.  T.  (N.  S.)  842;  25  W.  R.  272;  19  Mosik  Eng.  Rep.313; 
s.  c.,  affirmed  on  appeal,  37  L.  T.  (N.S.)  370;  26  W.  R.  2:5;  3  C.  1'.  Div. 
1;  30  Moak  Eng.  Rep.  1;  Playfonl  v.  United  Kingdom  Tel.  Co.,  L.  R. 
I  Q.  B.  706;  s.  c,  10Best&  S.759;  38  L.J.  (Q.  B.)  249;  17  L.T.  (N.S.) 
243;  L.  R.  4  Q.  B.  706;  16  Week.  Rep.  219;   17  Week.  Rep.  968. 


404  PARTIES    TO    ACTIONS 

in  many  cases,  they  cannot  ascertain."1  The  re- 
marks of  the  learned  justice  would  seem  to  apply 
only  incases  of  forged  telegrams.  The  force  of  this 
argument  is  not  preceived  in  cases  like  the  one  in 
which  it  was  made,  where  the  mistake  arose  wholly 
from  the  negligence  of  their  agent  in  deciphering 
the  dispatch. 

§  424.  Unsoundness  and  Injustice  of  the  English 
Rule. — The  English  rule  does  not  rest  on  an}^  sound 
principle,  and  proceeds  upon  a  gross  indifference  to 
justice.  The  receiver  of  the  message,  who  is  dam- 
nified by  the  mistake  of  the  company,  must  surely 
have  an  action  either  against  the  company,  or  against 
the  sender  of  the  message,  on  the  theory  that  the 
company  is  the  agent  of  the  sender.  But  the  sender 
of  the  message  may  be  insolvent,  and  therefore  the 
receiver  is  left  remediless  against  the  real  author  of 
the  wrong.  It  is  idle  to  explore  such  conceptions 
as  that  the  receiver  can  procure  the  sender  of  the 
message  to  sue  for  his  benefit,  or  that  the  sender 
may  sue  and  recover,  and  the  receiver  have  an  ac- 
tion over  against  him.  Such  conceptions,  which 
deny  a  direct  remedy  against  the  real  author  of  the 
wrong,  are  unworthy  of  any  civilized  system  of  ju- 
risprudence. The  gross  injustice  of  the  English  rule 
is  not  only  illustrated  by  the  case  cited  in  the  pre- 
ceding section,  but  also  by  the  following  case:  The 
plaintiff,  having  a  cargo  of  ice  on  board  a  ship  at 
Grimsby,  telegraphed  to  R.  and  H.  at  Hull,  asking 
them  to  make  an  offer  for  it,  and  requesting  them  to 
send  an  answer  by  telegraph.  R.  and  H.  sent  to 
the   office  of  a  telegraph   company  a   message  for 

1  Dickson  v.  Renter's  Tel.  Co.,  2  C.  P.  Div.  62;  s.  c,  affirmed  in  Court 
of  Appeals,  3  C.  P.  Div.  1,  and  also  as  cited  in  preceding  section. 


AGAINST    TELEGRAPH    COMPANIES.  405 

transmission  to  the  plaintiff,  by  which  they  offered 
to  take  the  cargo  at  23s.  per  ton.  In  thereading  of 
the  message  at  the  office  in  London  a  mistake  was 
made  in  the  figures,  and  the  telegram  sent  to  the 
plaintiff  represented  the  offer  as  being  27s.  instead 
of  23s.  per  ton.  The  plaintiff,  thereupon,  in  ac- 
ceptance of  the  supposed  offer,  ordered  the  ship  to 
proceed  to  Hull;  she  arrived  there,  but  R.  and  H. 
refused  to  receive  the  cargo,  except  at  23s.  per  ton. 
The  plaintiff  brought  an  action  against  the  telegraph 
company  to  recover  damages  in  respect  of  the  in- 
jury which  he  had  sustained  by  reason  of  the  mis- 
take. It  was  held  that  the  company  were  not  lia- 
ble,— the  obligation  upon  them  to  use  due  care  and 
skill  in  the  transmission  of  the  message  arising  out 
of  contract,  and  there  being  no  contract  between 
them  and  the  plaintiff.1 

§  425.  Exception  where  Sender  is  Agent  of  Ad- 
dressee.— The  English  judges  recognize  an  exception 
to  this  rule  in  the  case  where  the  sender  of  the  mes- 
sage sustains  to  the  person  to  whom  it  is  sent  the 
relation  of  agent,  through  which  relation  privity  of 
contract  is  established.2 

§  426.  American  Rule — Action  by  Addressee  for 
Non-Delivery. — On  a  principle  which  has  obtained 
some  foothold  in  American  jurisprudence,  that 
where  two  persons  make  a  contract  for  the  benefit 
of  a  third,  such  third  person  may   maintain  an  ac- 


1  Playford  v.  United  Kingdom  Electric  Telegraph  Company,  10  Best 
&S.  75*9;  8.  C,  21  L.  T.  (N.  S.)  21 :  17  W.  R.  968;  38  L.J.  (Q.  B.)  249; 
L.  R.  4Q.  B.  700.     See  s.  C,  17  L.  T.  (N.  S.)  243;   16  W.  B.  219. 

2  Playford  v.  United  Kingdom  Kleetric  Telegraph  Company,  I..  R.  1 
Q.  B.  706,  and  ;i-  cited  in  preceding  section. 


406  PARTIES    TO    ACTIONS 

tion  thereon,' — it  has  been  held  that  where  a  message 
is  sent  for  the  benefit  of  the  person  to  whom  it  is 
addressed  and  is  not  delivered,  he  may  maintain  an 
action  against  the  telegraph  company  for  the  dam- 
ages which  he  has  sustained  through  its  non-deliv- 
ery.2 

§  427.  View  Which  Sustains  the  Right  of  Action 
in  the  Addressee. — The  true  view,  which  seems  to 
sustain  the  right  of  action  in  the  receiver  of  the 
message,  or  in  the  person  addressed,  where  it  is  not 
delivered,  is  one  which  elevates  the  question  above 
the  plane  of  mere  privity  of  contract,  and  places  it 
where  it  belongs,  upon  the  public  duty  which  the 
telegraph  company  owes  to  any  person  beneficially 
interested  in  the  message,  whether  the  sender,  or 
his  principal,  where  he  is  agent,  or  the  receiver,  or 
his  principal,  where  he  is  agent.  In  Texas  it  is  rea- 
soned, with  manifest  good  sense,  that  the  question 
as  to  who  may  maintain  such   an   action   does   not 


1  Many  authorities  could  be  found  to  support  the  text,  and  the  weight 
of  American  authority  in  America  is  believed  to  be  so;  but  there  are 
many  American  cases  that  agree  with  the  English  courts,  and 
hold  that  a  person  who  is  not  a  party  to  a  simple  contract,  and  from 
whom  no  consideration  moves,  cannot  sue  on  the  contract,  and  conse- 
quently that  a  promise  made  by  one  person  to  another,  for  the  benefit  of 
a  third  pei"son  who  is  a  stranger  to  the  consideration,  will  not  support 
an  action  by  the  latter.  See  Burton  v.  Larkin,  3G  Kan.24G;  s.  C,  59  Am. 
Rep.  541;  Exchange  Bank  v.  Rice,  107  Mass.  37;  s.  c,  9  Am.  Rep.  1 ; 
Rogers  v.  Union  Stone  Co.,  130  Mass.  581 ;  39  Am.  Rep.  478. 

2  West  v.  Western  Union  Tel.  Co.,  39  Kan.  93;  s.  c,  7  Am.  St.  Rep. 
530;  Wadsworth  v.  Western  Union  Tel.  Co.,  8G  Tenn.  G95;  s.  C,  G  Am. 
St.  Rep.  864.  Thus,  a  physician  to  whom  a  telegram  requesting  his 
service  is  sent,  can  maintain  an  action  against  the  company  for  failure  to 
deliver  the  message.  Western  Union  Tel.  Co.  v.  Longwill  (X.M.),  21  Pac. 
Rep.  339.  See  also  Harris  v.  Western  Union  Tel.  Co.,  9  Phila.  (Pa.)  8S; 
De  Rutte  v.  Albany,  etc.  Tel.  Co.,  1  Daly  (N.  Y.),  547, 556;  s.  C,  30  How. 
Pr.  (X.  Y.)  403;  Rose  v.  United  States  Tel.  Co.,  3  Abb.  Pr.  (X.  S.)  (N. 
Y.)  409;  s.  C.  34  How.  Pr.  (X.  Y.)  308;  Western  Union  Tel.  Co.  v.  Fen- 
ton,  52  Ind.  1  :   De  T.rt  Grange  v.  Southwestern   'I'd.  Co,  25  La.  An.  383 


AGAINST    TELEGRAPH    COMPANIES.  407 

depend  upon  the  payment  of  the  fee,  or  upon  the 
question  whether  the  sender  had  been  previously 
constituted  an  agent  for  that  purpose  by  the  party 
to  whom  the  dispatch  is  sent,  but  upon  the  question 
who  in  fact  was  to  be  served,  and  who  is  dam- 
aged.1 "It  seems  reasonable,"  said  Woodward, 
J.,2  "that,  for  all  purposes  of  liability,  the  telegraph 
company  shall  be  considered  as  much  the  agent  of 
him  who  receives  as  of  him  who  sends  the  message. 
In  point  of  fact,  the  fee  is  often  paid  on  delivery; 
and  I  am  inclined  to  think  the  company  ought  to 
be  regarded  as  the  common  agent  of  the  parties  at 
either  end  of  the  wire."  But,  however  this  might 
be,  the  learned  judge  was  clear  that  the  company 
might  be  liable  for  misfeasance  to  third  parties.  In 
North  Carolina  the  receiver  of  a  message,  informing 
him  of  the  dangerous  illness  of  his  wife,  can  maintain 
an  action  against  the  telegraph  company  for  injury  to 
his  feelings  caused  by  its  gross  negligence  in  delay- 
ing to  deliver  the  message.4 

§  428.  Action  by  Addressee  for  Mistake. — By  the 
American  rule,  if  a  mistake  has  been  made  in  the 
transmission  of  a  message,  whereby  the  party  to 
whom  it  is  addressed  has  sustained  an  injury,  he 
may  maintain  an  action  against  the  company  for 
negligence,  grounded  on  a  neglect  of  the  duty  which 
they  have  assumed  toward  him.5     It  has   been  rea- 

1  Western  Union  Tel.  Co.,  v.  Adams,  75  Tex.  531;  S.  C,  G  L.  R.  A. 
844;  12  S.  W.  Rep.  857. 

-  New  York,  etc.,  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  303;  s.  C,  7S  Am. 
Dec.  338. 

3  See  also  Aiken  v.  Telegraph  Co.,  5  So.  Car.  358;  De  La  Grange  v. 
Southwestern  Tel.  Co.,  25  La.  An.  383. 

4  Young  v.  Western  Union  Tel.  Co.,  107  N.  C.  370;  s.  c,  11  S.E.  Rep. 
Kill;  «n«e,§  379. 

New  York,  etc.  Tel.  Co.  v.  Dryburg.  35  Pa.  St.  298;  8.  C,  78  Am. 
Dec.  338. 


408  PARTIES    TO    ACTIONS 

soned  that  the  right  of  action  may  be  rested  upon 
the  view  that  the  company  has  undertaken  as  his 
agent,  and  that  this  view  is  not  necessarily  displaced 
by  considering  tbat  the  company  is  also  the  agent 
of  the  sender;  for  it  may  well  be  the  agent  of  both 
parties.  But  the  conclusion  has  also  been  rested 
upon  the  view  that  such  a  mistake  is  a  case  of  mis- 
feasance,1 in  which  case  an  agent  is  responsible  not 
only  to  his  employer,  but  also  to  a  third  party  in- 
jured thereby.2 

§  429.  illustration  of  this  View. — On  this  prin- 
ciple, a  telegraph  company  was  liable  to  the  receiver 
for  the  negligence  of  its  operator  in  consenting  to 
send  a  dispatch  in  the  name  of,  and  purporting  to 
come  from  the  cashier  of  a  bank",  dating  it  at  another 
station,  at  the  request  of  a  person  known  to  the  op- 
erator not  to  be  such  cashier,  who  presented  no  evi- 
dence of  authority  to  use  the  cashier's  name,  which 
message,  addressed  to  a  banking-house,  held  out 
such  person  as  entitled  to  credit  for  a  large  amount.3 
So,  also,  if  the  agent  of  a  telegraph  company  atone 
of  its  stations,  with  power  to  delegate  his  authority, 
employs  another  person  to  transmit  and  receive  mes- 
sages, and  such  other  persori  sends  a  false  message, 

1  The  general  rule  on  this  subject  was  laid  down  by  Lord  Holt  in  Lane 
v.  Cotton,  12  Mod.  4SS,  in  these  words:  "A  servant  or  deputy  as  such 
cannot  be  charged  for  neglect,  but  the  principal  only  shall  be  charged 
for  it ;  but  for  a  misfeasance,  an  action  will  lie  against  a  servant  or  deputy, 
but  not  as  a  deputy  or  servant,  but  as  a  wrong-doer."  s.  C,  1  Ld.  Kaym. 
646.    See  also  2  Thomp.  Xeg.  1060. 

2  New  York,  etc.  Tel.  Co.  v.  Dryburg,  35  Pa.  St.  29S;  s.  c,  78  Am. 
Dec.  338.  It  has  been  held  that  one  to  whom  a  prepaid  message  is  sent 
can  maintain  an  action  against  the  telegraph  company  for  damages  oc- 
casioned by  the  negligent  omission  of  a  word.  Wolfskehl  v.  Western 
Union  Tel.  Co.,  46  Hun  (X.  Y.),  542.  But  doubtless  the  right  of  action 
does  not  depend  on  prepayment,  but  on  the  assumption  of  the  duty  for 
reward . 

s  Elwood  v.  Western  Union  Tel.  Co.,  45  X.  Y.  .")40. 


AGAINST    TELEGRAPH    COMPANIES.  409 

purporting  to  come  from  the  cashier  of  a  bank,  di- 
recting another  bank  to  pay  a  fictitious  person  a 
sum  of  money,  and  the  sender  then  personates  the 
fictitious  person  and  obtains  the  money,  without 
any  negligence  on  the  part  of  the  bank,  the  telegraph 
company  will  be  responsible  to  the  bank  thus  re- 
ceiving and  acting  upon  the  message.1  So,  where  a 
person  who  wished  to  order  some  oysters  of  "P. 
Ellsworth,"  being  unable  to  recall  the  name,  di- 
rected a  telegraphic  message  to  "P.  Elsey."  On  re- 
ceipt at  the  office  of  delivery,  the  message  read, 
"H.  Elsey,"  and  the  clerk,  finding  no  H.  Elsey  in 
the  city  directory,  delivered  the  message  to  John 
Elsey,  who  delivered  the  oysters;  but  the  sender  of 
the  message  refused  to  accept  them,  on  the  ground 
that  his  order  was  intended  for  P.  Ellsworth.  The 
court  held  that  the  telegraph  company  were  liable 
to  the  receiver  of  the  message  for  the  value  of  the 
oysters,  which  had  spoiled,  and  for  transportation." 
§  430.  When  the  Addressee  must  Sue  in  Tort. — 
Where  the  addressee  does  not  sustain  toward  the 
sender  the  relation  of  a  principal  to  his  agent,  he 
cannot  maintain  assumpsit  or  other  action  of  con- 
tract, but  his  remedy  is  in  tort, — at  least,  it  seems, 
in  jurisdictions  where  the  distinction  is  kept  up  be- 
tween forms  of  action.  And  this  is  especially  true 
where  his  action  is  grounded  upon  the  negligence 
of  the  defendant  in  altering  the  message,  whereby 
he  has  been  damaged, — the  theory  of  such  an  action 
being,  as  already  seen,  misfeasance.3 

1  Bank  of  California  v.  Western  Union  Tel.  Co.,  52  Cal.  280;  8.  C,  5 
Cent.  L.  J.  265. 

2  Elsey  v.  Postal  Tel.  Co.,  3  N.  Y.  Supp.  117. 

3  Western  Union  Tel.  Co.  v.  Dubois,  128  111.  2 IS;  s.  <:.,  21  \.  E.  Hop  . 
4;  15  Am.  St.  Rep.  109.    It  should  be  noted  tii.n  the  Eaglisb.  theory  In 


410  PARTIES    TO    ACTIONS 

§  431.  Where  Sender  is  Agent  of  a  Third  Person, 
Principal  may  Sue. — If  the  sender  is  merely  acting 
as  the  agent  or  servant  of  another,  the  right  of  action 
is  in  the  principal  or  master.  Thus,  where  one  per- 
son has  sent  a  message  to  another  in  a  letter,  re- 
questing him  to  dispatch  it  as  soon  as  possihle  by 
telegraph,  charging  the  expense  to  his  account,  the 
former  is  the  proper  party  to  sue  for  damages  for  a 
failure  to  send  the  dispatch  properly.1 

§  432.  Although  He  he  an  Undisclosed  Principal. 
— Where  the  dispatch  is  sent  by  an  agent  for  an  un- 
disclosed principal,  the  principal  may  maintain  the 
action  in  his  own  name  ;  and  the  fact  that  the  com- 
pany had  no  knowledge  that  the  plaintiff  was,  in 
fact,  the  principal  and  the  party  tendering  the  mes- 
sage his  agent,  is  immaterial,  except  in  so  far  as  it 
may  let  the  company  in  to  any  defense  against  the 
plaintiff  which  it  would  have  against  the  agent  if 
the  suit  were  brought  by  him.2 

§  433.  So,  Where  Sender  is  the  Agent  of  the  Ad- 
dressee.— This  rule  equally  applies  where,  as  in  the 
preceding  paragraph,  the  message  is  sent  by  the 
agent  for  the  principal  to  a  third   person,  or  where 


regard  to  privity  of  contract  seems  to  be,  partly  at  least,  in  vogue  in 
that  State, — as  shown  by  its  decisions  in  actions  against  carriers. 

1  De  Rutte  v.  New  York,  etc.  Tel.  Co.,  1  Daly  (X.  Y.),  547;  s.  c,  30 
How.  Pr.  (X.  Y.)  403. 

2  Harkness  v.  Western  Union  Tel.  Co.,  73  Iowa,  190;  s.  c,  5  Am.  St. 
Rep.  672.  The  governing  principle  is,  that  an  undisclosed  principal,  as 
the  "ultimate  party  in  interest,  is  entitled,  against  third  persons,  to  all 
advantages  and  benefits  of  such  acts  and  contracts  of  his  agent,  and 
consequently  that  he  may  sue  in  his  own  name  on  such  contracts." 
Story  Agency,  §  418;  National  Life  Ins.  Co.  v.  Allen,  116  Mass.  398; 
Gage  v.  Stimson,  26  Minn.  64.  See  also  Ruiz  v.  Norton,  4  Cal.  355;  s. 
C,  60  Am.  Dec.  618;  Coleman  v.  Elmira  Nat.  Bank,  53  N.  Y.  38S; 
Briggs  v.  Partridge,  64  N.  Y.  357 ;  Ford  v.  Williams,  21  How.  (U.  S.) 
2SS;  Dykers  v.  Townsend,  24  N.  Y.  57. 


AGAINST    TELEGRAPH    COMPANIES.  411 

it  is  sent  by  the  agent  to  the  principal  himself.  It 
is  obvious  that  where  the  sender  of  the  telegram  is 
acting  as  the  agent  of  the  person  addressed,  and  is 
conveying  information  to  his  principal,  and  where 
the  damages  arising  from  the  wrongful  transmis- 
sion, delay  or  non-delivery  of  the  dispatch  accrue  to 
the  principal  and  not  to  the  agent,  the  right  of 
action,  on  any  theory,  is  in  the  principal.  Here, 
there  is  a  privity  of  contract  between  the  principal 
and  the  telegraph  company  through  the  agent  of 
the  former,  such  as  exists  in  many  cases  between 
one  person  and  the  undisclosed  principal  of  another 
person  who  acts  as  agent.  Accordingly,  it  was  said 
in  New  York:  "It  does  not  necessarily  follow  that 
the  contract  is  made  with  the  person  by  whom,  or 
in  whose  name  the  message  is  sent.  He  may  have 
no  interest  in  the  subject-matter  of  the  message, 
but  the  party  to  whom  it  is  addressed  may  be  the 
only  one  interested  in  its  correct  or  diligent  trans- 
mission; and  where  that  is  the  case,  he  is  the  one 
in  realit}^  with  whom  the  contract  is  made.  *  *  * 
It  forms  no  part  of  their  business  to  inquire  who  is 
interested  in,  or  who  is  to  be  benefited  by  the  in- 
telligence conveyed.  That  becomes  material  only 
where  there  has  been  a  delay  or  a  mistake  in  the 
transmission  of  a  message,  which  has  been  produc- 
tive of  injury  or  damage  to  the  person  by  whom,  or 
for  whom  they  were  employed,  and  to  that  person 
they  are  responsible,  whether  he  was  the  one  who 
sent,  or  the  one  who  was  to  receive  the  message." 

1  De  Rutte  v.  New  York,  etc.  Tel.  Co.,  30  How.  Pr.  (N.  Y.)  403. 
compare  Rose  v.  United  States  Tel.  Co.,  3  Abb.  Pr.  (N.  S.)  (N.  Y.) 
408;  s.  C,  6  Rob.  (N.  Y.)  305.  In  this  case,  the  court  decided  against 
the  right  of  action  in  the  person  to  whom  the  message  was  addressed, 
but  conceded  in  their  opinion  "that,  irrespective  of  a  liability  arising 


412  PARTIES    TO    ACTIONS 

Thus,  where  the  plaintiff  had  made  an  arrangement 
with  his  agent  in  Paris  to  obtain  information  upon 
business  in  which  the  plaintiff  was  solely  interested, 
and  transmitted  it  by  telegraph' to  New  York  to  the 
address  of  "Mentor,"  but  the  dispatch  was  not  de- 
livered by  the  company  to  the  plaintiff, — it  was 
held  that  he  might  maintain  an  action  for  the  re- 
sulting damages.1 


purely  on  contract,  a  telegraph  company  may  be  responsible  to  a  third 
person  for  the  injurious  consequences  of  an  error  in  transcribing  and 
transmitting  a  telegraphic  message  to  such  third  person.  If,  upon  the 
faith  of  a  message  thus  communicated,  the  receiver  enters  into  contracts 
or  makes  engagements  which  result  in  loss  to  himself,  which  loss  is 
wholly  occasioned  by  errors  in  the  message,  as  transcribed  and  sent, 
and  which  errors  were  negligently  made  by  the  telegraph  company,  it 
would  seem  that  a  liability  should  attach,  not  on  the  ground  of  a  viola- 
tion of  the  contract,  but  of  the  violation  of  a  duty,  the  faithful  discharge 
of  which  the  company  had  undertaken."  In  the  following  cases  it  was 
held  that  the  company  was  liable  to  the  person  to  whom  the  message 
was  addressed  for  damages  for  its  negligence:  Harris  v.  Western  Union 
Tel.  Co.,  9  Phila.  (Pa.)  SS;  De  La  Grange  v.  Southwestern  Tel. 
Co..  25  La.  An.  383;  Aiken  v.  Telegraph  Co.,  5  S.  C.  358;  Elwood 
v.  Western  Union  Tel.  Co.,  45  N.  Y.  549;  s.  c,  6  Am.  Rep.  140  (case  of 
money  paid  in  consequence  of  a  fraudulent  message) ;  May  v.  Western 
Union  Tel.  Co.,  112  Mass.  90;  De  Rutte  v.  New  York,  etc.  Tel.  Co.,  30 
How.  Pr.  (N.  Y.)  403.  In  the  Province  of  Quebec  a  telegraph  company  is, 
by  the  Code,  responsible  to  the  receiver  of  a  telegram  for  damages 
caused  to  him  by  a  negligent  error  in  the  transmission  of  an  unrepeated 
message,  even  where  the  sender  writes  it  on  a  blank  on  which  is  printed 
a  condition  that  the  company  will  not  be  responsible  for  mistakes  in  the 
transmission  of  unrepeated  messages.  Watson  v.  Montreal  Tel.  Co.,  5 
Mont.  Leg.  News,  87.  In  Bell  v.  Dominion  Tel.  Co.,  3  Mont.  Leg. 
News,  406,  the  action  was  by  the  person  to  whom  the  message  was  ad- 
dressed, and  the  company  wras  held  liable,  the  court  following  the 
American  doctrine.  See  also  Delaporte  v.  Madden,  17  L.  Can.  Jur.  29, 
which  was  the  case  of  a  letter  instead  of  a  telegram,  where  the  English 
cases  are  reviewed. 

1  Milliken  v.  Western  Union  Tel.  Co.,  110  N.  Y.  403;  s.  c,  18  N.  E. 
Rep.  251;  1  L.  R.  A.  281;  27  Cent.  L.  J.  577.  See  also  De  Rutte  v. 
New  York,  etc.  Tel.  Co.,  1  Daly  (N.  Y.),  547;  s.  c,  30  How.  Pr.  (N.  Y.) 
403;  Leonard  v.  New  York,  etc.  Tel.  Co.,  41  N.  Y.  544;  New  York,  etc. 
Tel.  Co.  v.  Dryburg,  35  Pa.  St.  300;  Baldwin  v.  United  States  Tel.  Co., 
1  Lin-:.  r\.  Y.)  12S. 


AGAINST    TELEGRAPH    COMPANIES.  413 

§  434.  Broker  Transmitting  Message  for  Principal 
and  Suing-  in  his  own  Name. — An  agent  may  sue  ill 
his  own  name  on  contracts  made  in  his  name  in 
which  he  is  interested,  as  for  commissions,  or  by 
reason  of  a  special  property  in  the  subject-matter. 
Among  such  agents  are  factors,  brokers,  carriers, 
auctioneers,  a  policy  broker  whose  name  is  on  the 
policy,  or  an  agent  who,  in  his  own  name,  carries 
on  a  business  for  his  principal,  and  appears  to  be 
proprietor,  and  sells  goods  in  the  trade  as  such  ap- 
parent owner.  l     In  like  manner,  it  has   been  held 

]  Joseph  v.  Knox,  3  Camp.  320;  Gardiner  v.  Davis,  2  Cam  &  P.  4g; 
Dancer  v.  Hasting,  4  Bing.  2.  Where  A.,  for  his  own  account  and  risk, 
carried  on  trade  in  the  name  of  B.,  it  was  Leld  that  an  action  for  goods 
sold  in  the  course  of  such  trade  was  properly  brought  in  the  name  of 
B.  Alsop  v.  Gaines,  10  Johns.  (N".  Y.)  396.  So,  an  agent  may  sue  in 
his  own  name  on  a  promissory  note  given  to  him  as  such  for  the  benefit 
of  his  principal,  when  the  promise  is  made  to  the  agent  eo  nomine,  as 
where  a  note  was  made  payable  to  "Willam  A.  Mercer,  agent  for  Maria 
Walker,  executrix  of  John  Walker,  deceased."  Goodman  v.  Walker,  30 
Ala.  482;  s.  C,  68  Am.  Dec.  134.  On  the  other  hand,  except  in  the 
case  of  commercial  paper,  an  undisclosed  principal  may  sue  or  be  sued 
on  a  contract  not  under  seal  made  by  or  with  his  agent.  Ilsley  v.  Mer- 
riam,  7  Cusb.  (Mass.)  242;  s.  c,  54  Am.  Dec.  721;  Earle  v.  De  Witt,  6 
Allen  (Mass.),  520,  531;  Pitts  v.  Mower,  IS  Me.  361;  s.  c,  36  Am.  Dec. 
727;  Tutt  v.  Brown,  5  Litt.  (Ky.)  1 ;  s.  c,  15  Am.  Dec.  33;  Violet  v. 
Powell,  10  B.  Mon.  347;  s.  c,  52  Am.  Dec.  548;  Euiz  v.  Norton,  4  Cal. 
355;  s.  c,  60  Am.  Dec.  618;  St.  Louis,  etc.  K.  Co.  v.  Thacher,  13  Kan. 
567;  Chandler  v.  Coe,  54  N.  H.  561;  Crosby  v.  Watkins,  12  Cal.  S8; 
Lerned  v.  Johns,  9  Allen  (Mass.),  421;  Hunter  v.  Giddings,  97  Mass. 
41 ;  Byington  v.  Simpson,  134  Mass.  169;  Beckham  v.  Drake,  9  Mees.  & 
W.  79,  92,  per  Lord  Abinger.  See  also  Anderton  v.  Shoupe,  17  Ohio 
St.  128;  Taintor  v.  Prendergast,  3  Hill  (N.  Y.),  72;  s.  c,  38  Am.  Dec. 
618;  Gilpin  v.  Howell,  5  Pa.  St.  41 ;  s.  c,  45  Am.  Dec.  720.  So,  a  prin- 
cipal, foreign  or  domestic,  may  sue  for  the  price  of  goods  sold  by  his 
factor,  unless  it  is  made  affirmatively  to  appear  that  the  credit  was 
given  exclusively  to  the  agent.  Barry  v.  Page,  10  Gray  (Mass.),  398. 
Thus,  where  a  broker  or  agent  purchases  goods  without  disclosing  his 
prineipal,  the  principal,  when  discovered,  is  nevertheless  liable  for  the 
price,  and  may  also  sue  on  a  warranty  in  the  contract.  Beebee  v.  Hub- 
ert, 12  Wend.  (N.  Y.)  413;  S.  C,  27  Am.  Dec.  132.  But  the  action  is 
subject  to  any  set-off  or  advance  which  existed  against  the  agent  be- 
fore the  principal  was  disclosed  (Tutt  v.  Brown,  5  Litt.  (Ky.)  1  ;  S.  C, 


414  PARTIES    TO    ACTIONS 

that  a  broker  may  sue  a  telegraph  company  in  his 
own  name,  for  a  breach  of  a  contract  to  transmit  an 
order  in  his  name,  on  behalf  of  his  principal,  for 
the  purchase  of  goods.     In  such  case,  however,  he 

15  Am.  Dec.  33;  Judson  v.  Stilwell,  2G  How.  Pr.  (N.  Y.)  513;  Ruiz  v. 
Norton,  4  Cal.  355;  s.  c,  60  Am.  Dec.  618),  provided  there  were  no  cir- 
cumstances calculated  to  notify  the  party  that  he  was  dealing  with  an 
agent.  Bassett  v.  Lederer,  8  X.  Y.  Supreme  Ct.  076;  S.  c,  1  Hun  (N. 
Y.),  274.  In  order  to  maintain  an  action  where  the  action  is  by  an  un- 
disclosed principal,  he  must  prove  the  agency  and  the  power  of  the 
agent  to  bind  him  at  the  time  of  making  the  contract.  Ruiz  v.  Norton, 
supra.  Accordingly,  a  note  made  to  a  town  treasurer  by  name,  or  to 
his  successors  in  his  office,  may  be  sued  upon  by  the  town.  Arlington 
v.  Hynds,  1  D.  Chip.  (Vt.)  431 ;  s.  c,  12  Am.  Dec.  704.  And  parol 
evidence  to  show  the  town  of  which  the  nominal  payee  in  such  a  note 
was  treasurer  is  admissible,  if  the  note  does  not  show  that  fact.  Ibid. 
So,  where  a  note  was  endorsed  to  one  as  "cashier,"  it  was  held  that  the 
right  of  action  was  in  the  bank  of  which  he  was  cashier.  Farmers',  etc. 
Bank  v.  Day,  13  .Vt.  36;  Bank  of  Manchester  v.  Slason,  Id.  334.  So, 
where  a  note  was  made  to  certain  persons  as  "commissioners  of  the 
Vermont  Central  Railroad  Company,"  and  was'  afterwards  delivered  to 
the  company  on  its  organization,  it  was  held  that  the  company  could 
sue  on  the  note.  Vermont  Central  R.  Co.  v.  Clayes,  21  Vt.  30.  See  also 
Warden  v.  Burnham,  8  Vt.  390.  So,  on  a  sale  of  goods  on  credit  by  a 
licensed  auctioneer,  where  the  vendee  refuses  to  take  them,  the  owner 
may  bring  an  action  for  damages,  in  his  own  name,  before  the  expira- 
tion of  the  term  of  credit,  though  he  cannot  sue  for  the  price  till  the 
credit  expires.  Girard  v.  Taggart,  5  Serg.  &  R.  (Pa.)  19;  s.  c,  9  Am. 
Dec.  327;  recognized  and  followed  in  Hubbert  v.  Borden,  6  Whart. 
(Pa.)  79,  95.  The  law  on  this  subject  is  stated  by  Chancellor  Kent  on 
the  authority  of  Girard  v.  Taggart,  stipra,  as  follows:  "Though  pay- 
ment to  a  factor  for  goods  sold  by  him  be  valid,  the  principal  may  con- 
trol the  collection,  and  sue  for  the  price  in  his  own  name,  or  for 
damages  for  non -performance  of  the  contract;  and  it  is  immaterial 
whether  the  agent  was  an  auctioneer  or  common  factor."  2  Kent.  Com. 
624.  The  reason  which  allows  the  undisclosed  principal  to  sue  is  that 
he  is  liable,  when  discovered,  on  the  contract  made  by  his  agent.  As 
he  is  answerable  on  the  contract  on  the  one  hand,  he  has  a  cor- 
responding right  to  make  the  other  contracting  party  answer  to  him. 
That  an  undisclosed  principal  is  liable,  when  discovered,  on  a  contract 
made  by  his  agent,  and  that  he  can  maintain  an  action  on  such  con- 
tract, is  recognized  in  Jones  v.  ^tna  Insurance  Co.,  14  Conn.  501,  50S; 
Dykers  v.  Townsend,  24  N.  Y.  57,  61 ;  McKay  v.  Draper,  27  N.  Y.  256, 
264;  Union  Rubber  Co.  v.  Tomlinson,  1  E.  D.  Sm.  (N.  Y.)  364,  379; 
Ferguson  v.  Hamilton,  35  Barb.  (N.  Y.)  427,  442;  McMonnies  v.  Mac- 
kay,  39  Barb.  (X.  Y.)  561,  565;  Inglehart  v.  Thousand  Island  Hotel, 


AGAINST    TELEGRAPH    COMPANIES.  415 

recovers  as  trustee  for  his  principal.1  Under  the 
remedial  system  which  exists  in  Alabama,  where 
the  old  common  law  system,  with  statutory  modifi- 
cations is  understood  to  prevail,  with  a  separate 
court  of  chancery,  where  the  message  was  sent  by 
a  broker  to  his  principal,  the  action  is  properly 
brought  in  the  name  of  the  broker  to  the  use  of  the 
principal.2 

7  Hun  (N.  Y.),  549;  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6 
How.  (U.  S.)  344,  381;  Elkins  v.  Boston,  etc.  R.  Co.,  19  N.  H.  337,  342; 
Coleman  v.  First  Nat.  Bank,  53  N.  Y.  3S8,  394.    It  has  been  ruled  in 
New  York  that  the  suit  should  be  brought  in  the  name  of  the  principal 
and  not  in  the  name  of  the  agent,  where,  on  the  face  of  the  contract,  it 
purports  to  have  been  made  by  or  with  an  agent  having  no  direct  or 
beneficial  interest  in  the  transaction,  as  in  the  case  of  a  bond  made  to 
the    plaintiffs    by    the    name    and    description    of    the    "directors 
of     the    Onondaga    County    Mutual    Insurance    Company."      Bay- 
ley    v.    Onondaga     County    Mut.    Ins.   Co.,   6    Hill     (N.    Y.)     476- 
s.   c,    41  Am.    Dec.    759.      The    rule    seems   to   be    that,    although 
the    agent's    name    appears    in    the    contract,   yet,   if    it    is    accom- 
panied by  such  designation  of  the  official  or  representative  character  iu 
which  he  is  named  as  promisee  that  the  promise  is,  in  judgment  of 
law,  taken  to  be  to  his  principal  and  not  to  himself,  then,  in  such  case,  - 
the  contract  cannot  be  said  to  be  made  in  the  name  of  the  agent.    Con- 
siderant  v.  Brisbane,  2  Bosw.  (N.  Y.)  471,  479;  s.  c,  22  N.   Y.  400. 
The  rule  that  an  undisclosed  principal  may  sue  on  the  contract  of  his 
agent  does  not  apply  in  the  case  of  negotiable  paper:  here  the  right  of 
action  is  restrained  to  the  parties  to  the  instrument.     Williams  v.  Rob- 
bins,  16  Gray  (Ma.-s.),  77.     On  the  other  hand,  a  principal  is  not  liable 
on  a  bill  of  exchange  drawn  by  an  agent  in  his  own  name,  although  it 
contains  a  direction  to  the  drawee  to  charge  the  amount  to  the  account 
of  the  principal.    Bank  of  British  North  America  v.  Hooper,  5  Gray 
(Mass.),  567;  s.  c,  66  Am.  Dec.  390;  Emly  v.  Lye,  15  East,  7;  Pentz 
v.  Stanton,  10  Wend.  (N.  Y.)'271,  276;  s.  C,  25  Am.  Dec.  558;  Stack- 
pole  v.  Arnold,  11  Mass.  27;  s.  C,  6  Am.  Dec.  150;  Bedford  Commer- 
cial Ins.  Co.  v.  Covell,  S  Mete.  (Mass.)  442;  Taber  v.  Cannon,  Id.  456, 
460.     See  also  Bass  v.  O'Brien,  12  Gray  (Mass.),  477,  481;  Williams  v. 
Robbins,  16  Gray  (Mass.),  77;  Slawson  v.  Loring,  5  Allen  (Mass.),  342; 
Barlow  v.  Congregational  Society,  S  Allen  (Mass.),  461;  Tucker  Manf. 
Co.  v.  Fairbanks,  98  Mass.  101,  104;   Bartlett  v.  Tucker,  104  Mass.  336, 
339;  Anderton  v.  Shoupe,  17  Ohio  St.  125,  128.     Compare  Carpenter  v. 
Farnsworth,  106  Mass.  561;  Chandler  v.  Coe,  54  N.  II.  561,  567. 

1  United   States  Tel.  Co.  v.  Gildersleve,  29  Md.  332;  B.C.,  90  Am. 
Dec.  519. 

2  American  Union  IV 1.  Co.  v.  Daughtery,  89  Ala.  191 ;  .s.  c,  tub.  nom. 
American  Union  Tel.  Co.  v.  Daughtery,  7  South.  Rep.  660. 


41  f)  PARTIES    TO    ACTIONS 

§  435.       Stranger  to  Both  Sender  and  Addressee. — 

Under  any  theory  which  prevails  upon  this  subject, 
it  may  be  assumed  that  an  entire  stranger,  who  does 
not  sustain  towards  either  the  sender  or  addressee 
the  relation  of  a  principal  to  his  agent,  cannot  main- 
tain the  action;  because  there  is  neither  any  privity 
of  contract  as  to  him,  nor  is  he  in  the  contemplation 
of  both  parties  to  the  transaction  which  takes  place 
when  the  dispatch  is  sent.  Suppose,  for  instance, 
that  a  merchant  has  a  customer  for  whom  he  wants 
an  article,  which  he  himself  does  not  have,  and 
telegraphs  to  a  correspondent  for  it,  and,  in  conse- 
quence of  the  non-delivery  or  misdelivery  of  the 
message,  fails  to  get  it,  the  damages  which  his  cus- 
tomer has  thereby  sustained  can  be  sued  for  by 
neither  party,  unless  he  acted  as  the  customer's 
agent  in  the  transaction.1 

§  436.  Importance  of  the  Defendant  having- Notice 
of  the  Agency. — But,  in  view  of  the  principle  al- 
ready discussed,2  of  the  right  of  action  of  an  undis- 
closed principal,  on  contracts  made  for  him  by  his 
agent,  it  would  seem  to  be  a  misapplication  of  the 
rule  in  Hadley  v.  Baxendale,3  to  conclude  that, 
where  the  message  is  sent  for  the  benefit  of  another 
person  for  whom  the  sender  of  the  message  acts  as 
agent,  this  fact  must  be  brought  home  to  the  com- 
pany, in  order  to  charge  them  with  liability  for  the 
damages  which  he  sustains  through  the  non-deliv- 
ery of  the  message,  on  the  theory  that,  without 
such  notice,  his  rights  are  not  in  the  contemplation 

JSee,  in  illustration  of.  this,' Deslottes  v.  Baltimore,  etc.  Tel.  Co.  40 
La.  An.  183;  S.  c,  21  Am.  &  Eng.  Corp.  Cas.  15S;  3  JSoutb.  Rep. 
566;  3  Rail.  &  Corp.  L.  J.  342. 

2  Ante.  §  432. 

s  Ante,  §311. 


AGAINST    TELEGRAPH    COMPANIES.  417 

of  both  parties  to  the  contract  within  the  meaning 
of  that  rule.  For,  as  already  seen,1  it  is  sufficient 
to  meet  the  rule  of  Hadley  v.  Baxendale,  that  the 
company  have  general  notice  of  the  importance  of 
the  dispatch,  without  notice  of  particulars.  We, 
however,  find  a  case  seemingly  ignoring  this,  pre- 
senting the  following  facts:  The  plaintiffs  were  en- 
gaged in  operating  a  saw-mill.  The  saw  in  their 
mill  having  broken,  they  engaged  S.,  of  the  firm  of 
G.  &  S.,  to  order  them  a  new  one  from  St.  Louis  by 
telegram.  S.  addressed  a  dispatch  in  his  firm's 
name  to  a  hardware  company  in  St.  Louis,  directing 
them  to  ship  a  saw  at  once  to  the  plaintiffs,  and  deliv- 
ered it  to  a  traveling  salesman  of  that  company,  with 
the  money  to  pay  the  charges,  and  went  with  him 
to  the  telegraph  office.  The  salesman  wrote  another 
dispatch  signed  by  himself,  ordering  the  saw  to  be 
sent  to  G.  &  S.  Neither  dispatch  was  delivered.  The 
message  did  not  show  that  it  was  for  the  plaintiff's 
benefit,  and  the  agent  of  the  telegraph  company 
had  no  knowledge  of  that  fact.  It  was  held  that 
the  plaintiffs  had  no  right  of  action  against  the  com- 
pany, either  for  the  money  paid  for  the  transmission 
of  the  message,  or  for  damages  by  reason  of  their 
mill  being  idle  for  want  of  a  saw.2  But  where  the 
telegram  was  sent  by  a  third  person  in  th-Qplalut- 
iff's  presence,  and  the  plaintiff  paid  the  charges, 
and  the  operator  knew  its  importance,  the  question 
whether  the  defendant  had  notice  of  the  agency 
was  deemed  immaterial:  knowledge  of  the  fact  would 


1  Ante,  §  366. 

-  Elliott  v.  Western    Union   Tel.  Co.,  7.')  Tex.  18;  S.  c,  12  S.  \V.  Rep. 
054. 

(27) 


418  PARTIES    TO    ACTIONS 

not  have  influenced  the  conduct  of  the  defendant's 
agents.1  In  short,  the  theory  in  Texas  is, that  a 
telegraph  company  having  knowledge  of  the  urgency 

of  a  message,  is  liable  in  damages  for  negligence  in 
its  transmission  and  delivery,  although  it  was  pre- 
pared, delivered,  and  paid  for  by  another,  acting 
for  the  one  for  whose  benefit  it  was  sent,  at  his 
special  request,  and  not  by  the  former  in  person;" 
and  this  is  obviously  a  sound   view. 

§  437.  Action  over  by  Sender  for  Damages  Sus- 
tained by  Receiver  and  Recovered  from  tbe  Com- 
pany.— It  has  been  ruled  that  the  sender  of  a  tele- 
graphic dispatch  cannot  recover  of  the  company  the 
damages  sustained  by  the  receiver  of  it,  although 
the  sender  has  been  obliged,  by  the  judgment  of  a 
court  of  another  State,  to  pay  the  damages  sustained 
by  such  receiver,  in  consequence  of  the  wording  of 
the  dispatch  being  changed  in  transmission.3  On 
the  contrary,  another  court  has  held  that,  as  between 
the  sender  and  receiver  of  a  message  by  telegraph, 
any  loss  occasioned  by  a  change  of  the  terms  of 
the  message  during  transmission  must  fall  upon 
the  party  who  elected  that  means  of  communi- 
cation for  that  message.  Such  party  has  his  remedy 
over  against  the  telegraph  company,  in  case  the 
error  resulted  from  its  negligence.4  The  theory  of 
the  last  case  is  that  the  sender  makes  the  telegraph 
company  his  agent  to  convey  the  communication, 
and  thus  becomes  responsible  to  the  receiver  for  any 


1  Western   Union  Tel.  Co.  v.  Broescne,  72  Tex.  654;  s.  c,  10  S.  W. 
Rep.  734. 

2  Loper  v.  Western   Union  Tel,  Co..  70  Tex.  689;  s.  c,  8  S.  W.  Eep. 
000. 

8  Pegram  v.  Western  Union  Tel.  Co.,  100  N.  C.  28. 
4  Ayer  v.  Western  Union  Tel.  Co.,  7!»  Me.  493. 


AGAINST    TELEGRAPH    COMPANIES.  419 

mistake  therein.  But  cases  may  exist  where  the 
receiver,  and  not  the  sender,  may  choose  the  mode 
of  communication, — as  where  the  receiver  asks  a 
question  by  telegraph  and  the  sender  answers  it  by 
the  same  agency.  In  this  case  it  would  be  both 
unreasonable  and  unjust  to  allow  the  receiver  to 
visit  the  consequences  of  the  negligence  of  the  com- 
pany upon  the  sender. 

§  438.  Under  Indiana  Statutes  Giving-  Penalties. 
— The  action  for  the  penalty  given  by  the  former 
statute  of  Indiana,  elsewhere  quoted,1  is  only  main- 
tainable by  the  sender  of  the  message.2  And  the 
plaintiff  must  show  that  he  was  the  sender.  And 
he  does  not  do  this  by  showing  merely  that  he  de- 
livered a  message  to  the  company,  signed  by  another 
and  paid  for  by  himself.3  The  statute  of  the  same 
State,  of  1885, 4  prescribing  the  duties  of  telegraph 
companies  and  fixing  the  penalty  for  the  violation 
of  any  of  its  provisions,  to  be  recovered  by  "any 
party  aggrieved,"  has  not  changed  this  rule.5 

§  439.  Under  Indiana  Statute  Giving-  Special  Dam- 
ages.— But  under  the  statute  of  1881,  of  that  State,6 
providing  that  telegraph  companies  shall  be  liable 
for  special  dam  ages  occasioned  by  failure  or  negli- 
gence of  their  operators  in  receiving  or  transmitting 
dispatches,  a   different   rule  prevails  :  here   an    ad- 


1  Ante,  §  159,  note. 

2  Western  Union  Tel.  Co.  v.  Pendleton,  95  Ind.  12;  s.  c,  48  Am.  Rep. 
692;  Western  Union  Tel.  Co.  v.  Meek,  49  Ind.  53;  Western  Union  Tel. 
Co.  v.  Hopkins,  Id.  223;  Western  Union  Tel.  Co.  v.  Kinney,  10G  Ind. 
46S. 

3  Western  Union  Tel.  Co.  v.  Brown,  108  Ind.  538. 
*  Ante.  §  159. 

5Hadley  v.  Western  Union  Tel.  Co.,  115  Ind.  191;  s.  c,  21   Am.  & 
Eng.  Corp.  Cas.  72;  15  \.  E.  Hep.  845;  13  AVest.  Rep.  105. 
cRev.  Stat.- Ind.  §  -1177. 


420  PARTIES    TO    ACTIONS 

dressee  may  recover,  although  no  relation  of  con- 
tract exists  between  him  and  the  company.1 

§  440.  Under  Missouri  Statute  Giving-  Special 
Damages. — Under  the  Missouri  statute,"  which  pro- 
vides that  "every  telephone  or  telegraph  company 
now  organized,  or  which  may  be  hereafter  organ- 
ized under  the  laws  of  this  State,  shall  be  liable  for 
special  damages  occasioned  by  the  failure  or  negli- 
gence of  their  operators  or  servants  in  receiving, 
copying,  transmitting,  or  delivering  dispatches," 
the  addressee  may  maintain  the  action.' 

§  441.  Under  Mississippi  Statute  Giving"  Penalty. 
— The  Mississippi  Act  of  March  18,  1886, 4  providing 
that  any  telegraph  company  failing  to  transmit  and 
deliver,  within  a  reasonable  time,  any  message, 
shall  pay  $25  in  addition  to  other  damages  to  the 
person  injured,  is  construed  as  giving  the  right  to 
recover  the  penalty  to  one  to  whom  the  message  is 
addressed,  although  he  paid  nothing  for  its  trans- 
mission, and  sustained  no  pecuniary  injury.5 

§  442.  In  Case  of  Refusal  of  Connecting  Line  to 
Forward. — Where  an  action  is  given  by  statute  for 
neglecting  or  refusing  to  transmit  a  dispatch  by 
telegraph,  it  has  been  held  that  if  a  telegraph  com- 
pany desires  another  company  to  receive  and  for- 
ward a  message  which  has  come  over  its  line,  the 


'  Western  Union  Tel.  Co.  v.  McKibben,  114  Ind.  511;  s.  c,  14  X.  E. 
Rep.  894;  Hadley  v.  Western  Union  Tel.  Co.,  115  Ind.  191. 

2  Mo.  Rev.  Stat.  1879,  §  S87 ;  Id.  1889,  §  2729. 

3  Markel  v.  Western  Union  Tel.  Co.,  19  Mo.  App.  80.  The  Missouri 
statute  is  very  similar  to  that  in  Indiana  referred  to  in  the  [preceding 
section;  and  the  Missouri  court  adopted  the  construction  placed  by  the 
Supreme  Court  of  Indiana  upon  their  statute. 

4  Miss.  Acts  1S86,  p.  91. 

5  Western  Union  Tel.  Co.  v.  Allen,  66  Miss.  549;  s.  c,  6  South.  Rep. 
461 


AGAINST    TELEGRAPH    COMPANIES.  421 

company  so  desiring  the  telegram  to  be  sent*  is  the 
proper  party  to  sue  for  the  penalty  in  case  of  re- 
fusal; and  this,  notwithstanding  the  blank  upon 
which  the  sender  wrote  the  telegram  contains  a 
printed  heading  of  the  terms  and  conditions  on 
which  the  company  receive  telegrams  to  be  trans- 
mitted, stipulating  that  it  will  not  "be  held  liable 
for  any  errors  or  neglect  by  any  other  company 
over  whose  lines  this  message  may  be  sent  to  reach 
its  destination,  and  this  company  is  hereby  made 
the  agent  of  the  signer  of  the  message,  to  forward  it 
over  the  lines  of  other  companies  when  necessary."  1 
§  443.  Husband  Suing  for  Wife:  Texas  Code. — 
Under  the  Texas  Code  of  Civil  Procedure,  an  action 
for  damages  may  be  maintained  by  a  husband  alone, 
for  the  negligent  failure  of  a  telegraph  company  to 
transmit  and  deliver  a  message  to  his  wife.2  He 
may  sue,  irrespective  of  the  questions  of  agency  and 
payment;  and  the  fact  that  the  company  had  no 
notice  that  she  was  plaintiffs  wife,  or  that  the  con- 
tract was  made  for  her,  is  immaterial.3  He  is  the 
proper  party  to  sue  for  failure  to  deliver  a  message 
summoning  a  physician  to  attend  his  wife,  and  she 
is  not  a  necessary  party.4 

1  United  States  Tel.  Co.  v.  Western  Union  Tel.  Co.,  56  Barb.  (N.  Y.) 
46.  But  this  action  may  properly  be  maintained  by  the  sender  of  the 
dispatch  in  such  cases.  Baldwin  v.  United  States  Tel.  Co.,  54  Barb. 
(X.  Y.)  505;  Thurn  v.  Alta  California  Tel.  Co.,  15  Gal.  472;  Leonard  v. 
New  York,  etc.  Tel.  Co.,  41  N.  Y.  544;  Squire  v.  Western  Union  Tel. 
Co.,  OS  Mass.  232. 

2  Loper  v.  Western  Union  Tel.  Co.,  70  Tex.  OS!);  s.  c,  S  S.  W.  Rep. 
000. 

3  Western  Union  Tel.  Co.  v.  Adams,  75  Tex.  531;  s.  c,  12  S.  W.  Rep. 
857;  6  I..  A.  R.  84*. 

4  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  s.  c,  '•>  S.  W.  Hep. 
598. 


422        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 


CHAPTER   XIV. 

MATTERS  OF  PROCEDURE  AND  EVIDENCE. 

Article  I.        PLEADING. 

Article  II.      Evidence. 
Article  HI.     Other  Matteks. 


Article  I.— PLEADING. 


Section. 

448.  Form  of  Action  :     Contract  or  Tort. 

449.  What  the  Plaintiff  must  Aver  and  Prove. 

450.  Under  the  Indiana  Statute  Giving  a  Penalty. 

451.  Examples  of  Good  Declarations  or  Complaints. 

452.  Another  Example. 

453.  Example  of  a  Petition  Bad  because  Damages  too  Remote. 

454.  Uniting  Claim  for  Statutory  Penalty  with  Claim  for  Damages. 

455.  Allegata  et  Probata:     Variance. 

§  448.      Form    of    Action  :      Contract    or   Tort. — 111 

jurisdictions  where  the  forms  of  actions  are  so  far 
kept  up  that  a  distinction  is  made  between  actions 
of  contract  and  actions  of  tort,  if  the  action  is 
brought  by  the  receiver  of  the  message,  it  must  be 
in  tort,  since  there  is  no  contract  relation  between 
him  and  the  sender.1  But  this  rule  would  not  apply 
where  the  sender  of  the  message  acted  merely  as  the 
agent  of  the  receiver.  ~ 

1  Western  Union  Tel.  Co.  v.  Du  Bois,  P2S  111.  24S;  S.  c,  21  N.  E. 
Rep.  4. 
-  Ante.  *  425. 


QUESTIONS    OF    PLEADING.  423 

§  449.       What  the  Plaintiff   must   Aver   and   Prove. 

— It  has  been  ruled  that,  in  an  action  against  a  tel- 
egraph company  for  damages  for  failing  to  transmit 
a  message,  the  plaintiff  must  aver  in  his  complaint 
and  prove  on  the  trial,  that  the  defendant  has  a 
line  of  wires  wholly  or  partly  within  the  State  ;  that 
it  is  engaged  in  telegraphing  for  the  public,  and 
that  the  particular  message  was  placed  in  the  hands 
of  its  agent  for  transmission.  '  Under  the  New 
York  statute,  a  telegraph  company  is  required  to 
transmit  dispatches  on  payment  of  charges.  Hence, 
it  is  held  in  that  State  that  the  complaint  in  an 
action  for  damages  for  failure  to  deliver  a  message 
is  bad  on  demurrer  if  it  neither  alleges  'payment  nor 
tender  of  the  charges,  or  facts  showing  a  waiver,  or 
a  special  contract.2  So,  in  Indiana,  the  complaint 
must  aver  that  the  sender  paid  or  tendered  the 
usual  charges.3  In  Texas  the  petition  should  allege 
whether  exemplary  or  actual  damages  are  claimed. 4 

§  450.  Under  the  Indiana  Statute  Giving"  a  Pen- 
alty.— Two  successive  statutes  have  existed  in 
Indiana  allowing  the  recovery  of  the  sum  of  .$100 
for  the  violation  by  telegraph  companies  of  the 
duties  prescribed  by  the  statute.5  These  statutes 
have  always  been  construed  by  the  Supreme  Court 
of  that  State  as  giving  a  penalty,  and  not  as  giving 
merely  liquidated  damages.6     It  is  a  familiar  rule 

1  Western  Union  Tel.  Co.  v.  Ferguson,  ~n  Ind.  495. 

2  Macpherson  v.  Western  Union  Tel.  Co.,  52  X.  Y.  Super.  2.12. 
'■'•  Western  Union  Tel.  Co.  v.  Mossier,  95  Ind.  29. 

*McAUen  v.  Western  Union  Tel.  Co.,  70  Tex.  243;  8.  C,  7  S.  W . 
Rep.  715. 

•  Ante,  §  159. 

6  Western  Union  Tel.  Co.  v.  A.xtell,  69  Ind.  199;  Western  Union  Tel. 
Co.  v.  Mossier,  1)5  Ind.  29;  Western  Union  Tel.  Co.  v.  Kinney,  106  Ind. 
168;  Western  Union  Tel.  Co.  v.  Harding,  103  End.  505;    Western  Union 


424        ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

that  a  party  bringing  an  action  upon  a  penal  statute 
must  bring  himself  strictly  within  the  terms  of  the 
statute  :  it  is  at  once  strictly  construed  and  pursued. 
In  keeping  with  this  rule,  we  find  that  it  has  been 
held  in  that  State,  that,  in  an  action  under  the 
statute  of  1885, '  for  failure  to  transmit  and  deliver 
a  message  with  impartiality,  and  without  discrim- 
ination, the  complaint  must  allege  that  the  person 
to  whom  the  message  was  addressed  resided  within 
one  mile  of  the  station,  or  within  the  city  or  town 
wherein  the  same  is  situated.2  So,  in  an  action 
under  the  same  statute,  to  recover  the  penalty 
given  for  failing  to  transmit  a  telegram,  where  the 
plaintiff  alleges  that  the  contract  was  made  on  Sun- 
day, he  must  plead  facts  showing  a  reasonable 
necessity  for  making  the  contract  on  that  day,  and 
that  defendant  knew  of  this  necessity.3 

§  451.  Examples  of  Good  Declarations  or  Com- 
plaints.—  In  an  action  for  damages  for  delay  in 
delivering  a  telegram,  a  declaration  alleging  that, 
if  the  message  had  been  promptly  delivered,  plaintiff 
would  have  obtained*  the  purchase  of  a  lot  worth 
$5,000,  which  was  offered  for  sale  for  $3,000,  and 
that  by  the  delay  they  lost  the  purchase,  and  were 
damaged  the  difference  between  the  price  at  which 
the  lot  was  offered  to  them  and  its  market  value 
when  the  message  should  have  been  delivered,  was 

Tel.  Co.  v.  Steele,  108  Ind.  1G3;  AVestern  Uniou   Tel.  Co.  v.  Wilson. 
10S  Ind.  308;  Western  Union  Tel.  Co.  v.  Brown,  10S  Ind.  538. 

1  Aetslnd.  1885,  p.  151. 

2  Reese  v.  Western  Union  Tel.  Co.,  123  Ind.  2!>4;  s.  C,  24  X.  E.  Rep. 
163. 

8  Western  Union  Tel.  Co.  v.  Yopst,  US  Ind.  348;  s.  c,  3  L.  R.  A. 
224:   20  N.  E.  Rep.  222. 
4  Compare  ante,  i  340.  et  seg. 


QUESTIONS    OF    PLEADING.  425 

held  good  on  demurrer.1  A  complaint  in  an  action 
against  a  telegraph  >  company,  alleged  that  the 
plaintiffs  agent  in  France  forwarded  a  cable  message 
addressed  to  "Mentor,  New  York,"  which  message 
was  intended  for  the  plaintiff;  that  the  plaintiff  called 
at  the  defendant's  office  and  inquired  if  it  had  re- 
ceived the  message,  and  was  informed  that  it  had 
not;  that  the  plaintiff  then  stated  that  he  was  expect- 
ing a  message  from  Paris,  so  addressed,  and  requested 
the  defendant  to  deliver  it  to  him  at  his  residence, 
and  offered  to  pay  such  service  in  advance,  which  the 
defendant  declined  to  accept,  but  promised  to  deliver 
such  message  to  the  plaintiff  when  received  by  it;  that 
the  defendant  received  such  message,  but  neglected 
to  deliver  the  same  as  agreed,  in  consequence  whereof 
the  plaintiff  suffered  loss,  etc.  It  was  held  that  this 
stated  a  good  cause  of  action,  either  on  the  contract 
made  by  the  defendant  with  the  plaintiff's  agent 
in  Paris,  or  upon  the  agreement  with  the  plaintiff 
in  New  York.2 

§  452.  Another  Example. — The  Supreme  Court 
of  Texas  has  held  that  a  petition  stated  a  good  cause 
of  action,  which  alleged  that  the  plaintiff's  wife's 
son,  who  was  dangerously  ill  at  M.,  wrote  a  mes- 
sage dated  October  2d.,  in  the  words:  "Come  im- 
mediately— I  am  very  sick,"  which  was  delivered 
to  the  agent  at  M.,  at  4  p.  m.  of  that  date,  for  trans- 
mission; that  the  agent  was  informed  of  the  rela- 
tionship between  the  parties;  that  on  that  day  the 
plaintiff  and  his  wife  were  in  W.,  within  600  yards 

1  Alexander  v.  Western  Union  Tel.  Co.,  67  Miss.  386;  8.  <'.,  5  South. 
Rep.  :397. 

-'  Milliken  v.  Western  Union  Tel.  Co.,  110  N.  Y.  103;  8.  C.,  1  L.  R.  A. 
281;  18  N.  E.  Rep.  251;  18  N.  Y.  St.  Rep.  328  (reversing  8.  C,  53  \.  Y. 
Super.  111.) 


426        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

of  the  defendant's  office,  as  Was  well  known  by  th*e 
agent  at  that  place;  that  the  message  could  have 
been  delivered  within  half  an  hour  from  its  receipt 
at  M.;  that,  if  it  had  been  so  delivered,  the  plaint- 
iff's wife  could,  by  the  usual  course  of  travel,  have 
reached  her  son  before  his  death,  on  the  third;  that, 
by  the  negligence  of  the  defendant,  the  message  was 
not  delivered  until  6  p.  m.  on  the  third;  that  she 
took  the  next  train  for  M.,  but  learned,  at  an  inter- 
mediate point,  that  her  son  was  dead,  and  that  the 
body  had  been  sent  to  E.  for  burial;  that  she  started 
at  once  for  E.,  but  was  unable  to  reach  there  until 
after  the  body  had  been  interred;  that  she  suffered 
great  hardship,  in  being  compelled  to  travel  on  a 
freight  train  a  part  of  the  way,  and  great  mental 
anguish  by  not  being  with  her  son  in  his  last  mo- 
ments, etc.  The  court  reasoned  that,  although  the 
allegations  in  regard  to  the  death  and  burial  of  the 
son  may  have  been  insufficient  if  specially  excepted 
to,  yet  it  appearing  by  reasonable  intendment  that 
he  died  about  noon  of  October  3d,  and  had  been 
buried  when  his  mother  arrived,  they  must  be 
treated  as  sufficient  on  general  demurrer.1 

§  453.  Example  of  a  Petition  Bad  Because  Dam- 
ages too  Remote. — But  where  the  plaintiff,  after  al- 
leging in  his  petition  that  he  delivered  to  the  de- 
fendant company  for  transmission  a  message  as  fol- 
lows: "R.  [addressed]  Meet  me  in  C.  Saturday 
night.  S.,"  which  was  not  delivered  to  R.,  and 
further  alleging  that,  by  its  negligence,  he  was  put 
to  expense  in  hiring  a  conveyance  to  go  from  C.  to 
R.'s  home  and  back  again;   that  by  loss  of  time  he 

1  Loper  v.  Western  Union  Tel.  Co.,  70  Tex.  6S9;  s.  C,  8  S.  W.  Rep. 
GOO.     As  to  damages  grounded  on  mental  anguish,  see  ante,  §  378  et  seq. 


QUESTIONS    OF    PLEADING.  427 

failed  to  meet  important  engagements;  and  that,  by 
reason  of  exposure,  his  health  was  greatly  impaired, 
the  petition  was  held  bad  on  demurrer,  the  damages 
being  too  remote,  conjectural,  and  not  in  contempla- 
tion of  the  parties,  in  case  of  a  breach  of  the  con- 
tract.1 

§  454.  Uniting  Claim  for  Statutory  Penalty  with 
Claim  for  Damages. — A  declaration  is  not  bad  on 
general  demurrer  by  reason  of  the  fact  that  the 
pleader  unites  in  one  of  the  counts  a  claim  for  the 
statutory  penalty,  which  claim  is  not  actionable, 
because  the  telegraph  is  an  interstate  line;'2  though, 
no  doubt,  it  could  be  reached  by  a  special  demurrer, 
or,  under  some  systems,  by  a  motion  to   strike  out. 

§  455.  Allegata  et  Probata:  Variance. — The  al- 
legata and  the  probata  must,  of  course,  correspond 
as  to  essential  matters;  but  this  rule  does  not  ex- 
tend to  dates,  provided  the  date  proved  is  within 
the  statute  of  limitations,  unless  there  are  special 
circumstances  making  the  date  material.  Thus, 
where  a  complaint  to  recover  the  statutory  penalty 
for  failure  to  transmit  a  telegram  alleged  that  it  was 
sent  in  March,  it  was  held  that  it  could  be  shown 
to  have  been  sent  in  January .3 

1  Western  Union  Tel.  Co.  v.  Smith,  7G  Tex.  253;  s.  c,  13  S.  W.  Rep. 
169.     See  ante,  §  318  et  seq. 

2  Alexander  v.  AVestern  Union  Tel.  Co.,  67  Miss.  3S6;  s.  C,  5  South. 
Rep.  397. 

3  Western  Union  Tel.  Co.  v.  Kilpatrick,  97  Ind.  42. 


428        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 


Article    II.— EVIDENCE. 

Section. 

458.  Declarations  of  the  Company's  Agents. 

459.  Correspondence  between  Telegraph  Operators. 

460.  Evidence  on  the  Question  of  Damages. 

461.  Other  Points  of  Evidence. 

462.  Evidence  of  Claim  of  Indemnity  duly  Made  of  Company. 

463.  Parol  Evidence  of  Contents  of  Such  Claim. 

464.  When  Copy  of  Message  Admissible  in  Evidence. 

465.  Judicial  Notice  not  Taken  of  Telegraph  Lines. 

466.  Secondary  Evidence  of  the  Contents  of  the  Telegram. 

§   458.      Declarations  of  the    Company's   Agents. — 

The  subsequent  declarations  of  the  company's  agents, 
not  connected  with  the  sending  of  the  message,  are 
incompetent  evidence  to  charge  the  company  in  an 
action  against  it,  the  same  not  being  part  of  the  res 
gestae,  but  in  the  nature  of  historical  narratives.1 
Thus,  the  statements  of  such  an  agent  are  not  com- 
petent, as  against  the  company,  to  prove  that  a 
message  was  not  transmitted,  when  not  made  in 
performance  of  any  duty  relating  to  its  transmis- 
sion.2 

§   459.       Correspondence    Between   Telegraph    Op- 
erators.— The  same  principle   obviously   applies  so 

1  Grinnell  v.  Western  Union  Tel.  Co.,  113  Mass.  299,  307  ;  McAndrew 
v.  Electric  Tel.  Co.,  17  C.  B.  3;  United  States  Tel.  Co.  v.  Gildersleve,  29 
Md.  232;  Sweetland  v.  Illinois,  etc.  Tel.  Co.,  27  Iowa,  433;  Robinson  v. 
Fitchburg,  etc.  R.  Co.,  7  Gray  (Mass.),  92. 

Western  Union  Tel.  Co.  v.  Way,  83  Ala.  542;  s.  c,  4  South.  Rep.  844. 


QUESTIONS    OF    EVIDENCE.  429 

as  to  exclude  the  declarations  of  the  company's 
agents  made  to  each  other,  even  dum  fervet  opus, 
when  offered  to  prove  extrinsic  facts  capable  of  be- 
ing0 proved  by  the  testimony  of  witnesses  under 
oath.  Thus,  in  an  action  for  the  failure  of  a  tele- 
graph company  to  deliver  a  message,  the  corre- 
spondence between  telegraph  operators  of  the  defend- 
ant is  not  admissible  to  prove  any  direct  fact,  ex- 
cept the  fact  that  such  correspondence  took  place, 
if  that  should  become  material.  Accordingly,  such 
correspondence  is  not  admissible  to  prove  that  the 
addressee  of  the  message  was  gone  to  the  country 
at  the  time  when  the  message  was  received  by  the 
delivering  office,  so  that  it  could  not  be  delivered 
to  him.1 

§  460.  Evidence  on  the  Question  of  Damages. — The 
plaintiff  must,  of  course,  prove  damages,  or  he  can- 
not recover  anything  for  the  mistake  or  default  other 
than  nominal  damages,  or  the  cost  of  sending  the 
message.  Where  the. default  consisted  in  delay  in 
delivering  the  message,  and  there  was  no  evidence 
tending  to  show  that  matters  would  have  been  dif- 
ferent if  the  message  had  been  promptly  delivered, 
or  that  any  loss  was  caused  by  the  delay,  it  was 
held  error  to  submit  the  question  of  the  defendant's 
liability  to  the  jury.2  On  the  other  hand,  where 
the  action  is  for  a  statutory  penalty ,  it  is  not  necessary 
for  the  plaintiff  to  prove  any  damages  in  order  to 
recover,3    and    this,  irrespective    of  the    question 


1  Western   Union  Tel.  Co.  v.   Cooper,  71   Tex.  507;  S.  C,  10  Am.  St. 
Eep.  772;  9  S.  W.  Rep.  598. 

2  Cutts  v.  Western  Union  Tel.  Co.,  71    Wis.  46;  8.  C,  36   X.  W.  Rep. 
627. 

8  Western  Union  Tel.  <  o.  v.  Buchai  an,  :r<  ln<!.  129;  s.  •'..  9  Am.  Rep. 
744. 


430       ACTIONS    AGAINST   TELEGRAPH    COMPANIES. 

whether  the  statute  is  regarded  as  giving  a  penalty 
or  liquidated  damages.  In  a  jurisdiction  where 
mental  suffering  has  been  held  an  element  of  dam- 
ages in  an  action  against  a  telegraph  company  for  a 
default  in  failing  to  deliver  a  message,  a  well-known 
rule  has  been  applied  so  as  to  admit  evidence  of  the 
utterances  or  expressions  indicative  of  pain  or  suffer- 
ing caused  by  such  failure.1  In  such  an  action,  the 
opinion  of  a  broker  "that  there  was  no  certainty 
that  the  stock  could  have  been  purchased  at  the 
quotation  prices,  on  the  morning  the  telegram  was 
received,"  has  been  heldnotadmissible.2  Evidence 
as  to  the  financial  condition  of  the  telegraph  com- 
pany is  inadmissible.3  Where  the  action  was  for 
failure  to  deliver  a  telegram  within  a  reasonable 
time, — a  message  to  a  doctor,  summoning  him  pro- 
fessionally,— evidence  on  behalf  of  the  telegraph 
company  that  the  doctor's  charges  had  not  been 
paid,  and  that  it  was  not  his  custom  to  make  such 
visits  without  prepayment,  was  held  inadmissible.4 
§  461.  Other  Points  of  Evidence. — 111  an  action 
against  a  telegraph  company  for  negligence  in  the 
transmission  of  a  message,  evidence  is  inadmissible 
against  the  company,  that,  because  of  the  alleged 
negligence,  one  of  its  officers  made  a  deduction  from 
the  pay  of  one  of  its  operators.5  Where  the  action 
is  brought  by  the  addressee  of  the  message  who  seeks 

1  Western   Union  Tel.  Co.  v.  Henderson,  89  Ala.  510;  s.  c.  7  South. 
Rep.  419. 

2  United  States  Tel.  Co.  v.  Wenger,  55  Pa.  St.  2G2;  s.  c,  93  Am.  Dec. 
751. 

3  Western  Union  Tel.  Co.  v.  Henderson,  S9   Ala.  510;  s.  c,  7  South. 
Kep.  419. 

4  Western  Union  Tel.  Co.  v.  Henderson,  supra. 

3Grinuell  v.  Western   Union   Tel.  Co..  113   Mass.  299;    s.  C.,18  Am. 
Rep.  4S5. 


QUESTIONS    OF    EVIDENCE.  431 

to  recover  damages  for  a  mistake  in  transmitting  it, 
whereby  he  was  induced  to  make  certain  purchases 
which  he  otherwise  would  not  have  made, — he 
may,  it  has  been  held,  show  how  he  understood  it, 
and  may  testify  that,  on  the  faith  of  his  understand- 
ing of  it  he  made  the  purchases.1  But,  in  such  an 
action,  the  declarations  of  the  plaintiffs  brokers  as 
to  the  reason  why  they  did  not  buy  stock,  on  the 
receipt  of  a  letter  ordering  its  purchase,  are  not  ad- 
missible in  favor  of  their  principal,  not  being  a  part 
of  the  res  gestse  in  regard  to  the  contract ,  with  the 
telegraph  company  to  send  the  message.2 

§  462.  Evidence  of  Claim  of  Indemnity  duly  Made 
of  Company. — A  sender  of  a  telegram  complained 
to  the  operator  of  a  mistake  that  had  been  made  in 
its  transmission,  and  was  directed  to  the  principal 
office  of  the  company,  where  he  was  informed  by 
the  clerk  in  charge  that  the  office  manager  was  busy, 
and  was  requested  to  make  his  business  known  to 
the  clerk,  who  would  take  the  complaint  down  in 
writing.  The  complaint  was  accordingly  taken  down 
in  writing,  and  in  the  presence  of  the  sender  handed 
to  a  person  represented  to  be  the  attorney  of  the 
company,  who  said  he  would  investigate  the  mat- 
ter, and  who  subsequently  wrote  the  sender,  on  a 
letter  form  of  the  company  that  his  claim  for  compen- 
sation Avas  rejected.  It  was  held,  in  an  action 
against  the  company,  that  there  was  sufficient  evi- 
dence prima  facie  to  establish  the  fact  that  the  com- 
plaint reached  the  defendant;  and  that  the  persons 

1  Aiken  v.  Western  Union  Tel.  Co.,  69  Iowa,  31. 

2  United  States  Tel.  Co.  v.  Wenger,  55  Pa.  St.  262;  s.  c,  93  Am.  Dec. 
751.  Contlicting  evidence  on  which  a  jury  were  justified  in  rinding  that 
an  application  was  made  to  the  defendant  company  for  the  transfer  of 
money  to  L.,  and  not  to  S.  Western  Union  'I'd.  Co.  v.  Simpson,  73  T<\. 
423;  8.  C,  11  S.  W.  Rep.  385. 


432        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

dealing  with  the  sender  were  authorized  to  act  and 
speak  for  it.1. 

§   463.      Parol  Evidence  of  Contents  of  Such  Claim. 

— It  has  been  held  that,  where  a  person,  who  has 
suffered  loss  by  the  neglect  of  a  telegraph  company 
to  deliver  a  message,  serves  upon  the  agent  of  the 
company  a  written  demand  for  damages,  and  gives 
the  agent  a  copy  thereof,  but  keeps  the  original,  on 
which  the  agent  accepts  service  in  writing,  he  may 
prove  the  contents  thereof  by  parol,  where  the  loss 
of  the  original  is  shown.2 

§  464.  When  Copy  of  Message  Admissible  in  Evi- 
dence.— In  an  action  against  a  telegraph  company 
for  failure  to  deliver  a  message,  it  has  been  held  not 
error  to  admit  a  copy  of  the  message,  properly 
identified,  fourteen  months  after  its  receipt  for  trans- 
mission by  the  company,  where  it  is  first  shown  by 
the  manager  at  the  receiving  office  that  the  original 
is  not  in  his  office,  nor  under  his  control,  and  that, 
by  the  rules  of  the  company,  original  messages  are 
retained  in  the  office  where  received  for  six  months, 
and  are  then  sent  to  Chicago  and  destroyed.3 

§  465.  Judicial  Notice  not  Taken  of  Telegraph 
Lines. — A  court  cannot  take  judicial  notice  of  the 
existence  or  operation  of  the  telegraph  lines  of  a 
company  outside  of  the  territorial  jurisdiction  of 
the  court/ 

1  Bennett  v.  AVestern  Union  Tel.  Co.,  18  X.  Y.  St.  Rep.  777;  s.  C,  2  X. 
Y.  Supp.  365. 

2  Western  Union  Tel.  Co.  v.  Collins  (Kan.),  25  Pac.  Rep.  187. 
;  Western  Union  Tel.  Co.  v.  Collins  (Kan.),  25  Pac.  Rep.  187. 

4  People  v.  Tierney,  57  Hun  (X.  Y.),  357;  s.  c,  32  N.  Y.  St.  Rep.  605; 
10  X.  Y.  Supp.  940;  Same  v.  Same  (Sup.  Ct.),  32  X.  Y.  St.  Rep.  60S; 
s.  C,  10  X.  Y.  Supp.  948. 


QUESTIONS    OF    EVIDENCE.  433 

§  466.  Secondary  Evidence  of  the  Contents  of 
the  Telegram. — As  in  cases  of  other  writings,  proof 
of  the  loss  of  a  telegram  is  a  necessar}^  foundation 
to  the  admission  of  parol  evidence  of  its  contents.1 
It  has  been  held  that  the  testimony  of  the  operator 
in  charge  of  the  defendant's  office  from  which  a  tele- 
gram was  sent,  that  he  sent  away  all  the  papers  found 
there  shortly  after  the  telegram  was  sent,  and  that 
he  has  been  informed  that  they  were  destroyed,  is 
not  competent  to  show  the  destruction  of  the  tele- 
gram for  the  purpose  of  admitting  parol  evidence 
of  its  contents.2  The  reason  of  the  rule  is  thus 
stated  by  Mr.  Justice  Clopton,  citing  the  authori- 
ties in  the  margin:  "Ordinarily  the  declarations  of 
the  person  who  last  had  possession  of  a  writing  are 
not  receivable  as  evidence  of  its  loss  if  he  be  alive, 
and  in  the  jurisdiction  of  the  court.  There  are 
cases  in  which  the  declarations  of  a  person  to  whom 
it  was  last  traced,  to  the  effect  that  he  did  not  have 
the  instrument,  or  to  whom  he  had  delivered  it, 
have  been  received  for  the  purpose  of  showing  that 
the  party  had  prosecuted  a  diligent  search.3  Though, 
as  the  sufficiency  of  the  preliminary  proof  is  for 
the  court,  it  may  not  be  necessary  to  preserve  the 
strict  rule  between  direct  and  hearsay  evidence,  it 
is  not  so  far  relaxed  as  to  admit  hearsay  evidence  to 
show  the  fact  of  search,  or  the  destruction  of  the 
writing  by  the  declarant."4  It  was,  therefore,  held 
not  proper  to  allow  a  witness,  who  had  been  a  tele- 
graph operator  of  the  defendant,  to  testify,  not  from 

1  Whilden  v.  Bank,  64  Ala.  1. 

2  American  Union  Tel.  Co.  v.  Daughtery,  89  Ala.  191;  s.  c,  sub.  nom. 
American  Union  Tel.  Co.  v.  Daugutry,  7  South.fcRep.  660. 

3  Reg.  v.  Kenilworth,  53  E.  C.  L.  642. 

4  Whart.  Ev.  §  150. 

(28) 


434        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

his  own  knowledge,  but  from  information  received 
from  others,  that  the  papers  of  the  telegraph  com- 
pany had  been  sent  from  Mobile  to  New  York  and 
sold  to  a  paper  mill,  for  the  purpose  of  letting  in 
parol  evidence  of  the  contents  of  a  telegram.1 

1  American  Union  Tel.  Co.  v.  Daughtery,  89  Ala.  191 ;  s.  c,  sub.  nom. 
American  Union  Tel.  Co.  v.  Daughtry,  7  South.  Rep.  660. 


MATTEES    OF    PRACTICE.  •    435 


Article  III.— OTHER   MATTERS. 

Section. 
469.     Service  of  Process  on  Such  Companies. 
47U.     Instructions. 
471.    Immaterial  Special  Findings. 

§    469.      Service  of  Process   on   Such   Companies. — 

Service  of  summons,  in  an  action  against  a  telephone 
and  telegraph  company,  on  its  general  superintend- 
ent, an  officer  having  general  charge  of  one  of  its 
departments,  is  a  service  on  a  "managing  agent," 
within  the  meaning  of  a  statute1  providing  that 
service  of  a  summons  upon  a  domestic  corporation 
must  be  made  by  delivering  a  copy  thereof,  within 
the  State,  "to  the  president  or  other  head  of  the 
corporation,  *  *  *  or  a  director  or  managing 
agent."2 

§  470.  instructions. — Where  the  negligence  spe- 
cifically charged  in  the  petition  is  failure  to  find  the 
addressee  of  the  message  after  the  message  has  been 
transmitted,  and  the  petition  states  that  the  mes- 
senger was  promptly  sent  to  the  place  of  final  de- 
livery, the  defendant  is  entitled  to  an  instruction 
explaining  to  the  jury  that  there  is  no  question 
about  delay  in  transmitting   the  message   over   the 

1  N.  f .  Code  Civ.  Proc.  §  431. 

2  Barrett  v.  American  Telephone,  etc.  Co..  10  X.  Y.  Supp.  138. 


436        ACTIONS    AGAINST    TELEGRAPH    COMPANIES. 

wire.1  A  charge  requiring  the  jury  to  determine 
the  degree  of  negligence,  without  defining  the  same, 
has  been  held  not  ground  for  a  reversal,  in  the  ab- 
sence of  any  proper  assignment  of  error  showing 
that  a  finding  of  gross  negligence  influenced  the 
jury  in  fixing  the  amount  of  the  damages.2  Where 
it  was  shown  that  there  was  the  sign  of  the  defend- 
ant company  over  the  door  of  the  office  where  the 
message  was  received,  and  the  operator  testified 
that  he  paid  over  all  receipts  to  the  treasurer  of  said 
company,  it  was  held  not  error  to  charge  that  the 
office  is,  prima  facie,  an  office  of  the  defendant.] 

§  471.  Immaterial  Special  Findings. — In  such  an 
action,  the  appellate  court  will  not  reverse  the  judg- 
ment of  the  trial  court  because  of  an  incorrect  find- 
ing to  the  effect  that  "defendant's  telegraph  line 
was  not  in  good,  perfect  working  order,"  where 
there  is  other  evidence  of  negligence/ 

1  Western  Union  Tel.  Co.  v.  Cooper,  71  Tex.  507;  s.  C.  10  Am.  St. 
Rep.  772. 

2  Gulf,  etc.  R.  Co.  v.  Miller  (Tex.),  7  S.  W.  Rep.  653. 

s  Thompson  v.  Western  Union  Tel.  Co.,  107  N.  C  449;  s.  c.  12  S.  E. 
Rep.  427. 

4  Turner  v.  Hawkeye  Tel.  Co.,  41  Iowa,  458;  s.  c,  20  Am.  Rep.  605, 
608. 


THEIR    VALIDITY    AND    EFFECT.  437 


CHAPTER   XV. 

CONTRACTS  BY  TELEGRAPH. 

Section. 

475.  Validity  of  Contracts  by  Telegraph. 

476.  Telegram  a  Memorandum  under  Statute  of  Frauds. 

477.  When  Offer  Deemed  to  have  been  Accepted. 

478.  Place  of  Contract :    Offer  in  One  State,  Acceptance  in  Another. 

479.  Certainty  in  the  Proposition  and  Acceptance. 

480.  View  that  the  Company  is  not  the  Agent  of  the  Sender. 

481.  The  Same  View  in  an  American  Court. 

482.  Weight  of  American  Doctrine  to  the  Contrary. 

483.  Ratification  of  Such  Agency. 

484.  Rights  of  Sender  of  Message  against  Company  in  Such  a  Case. 

485.  Illustration:     Sender  must  Fulfill  Order  as  Delivered,  and  Seek 

Recourse  of  the  Telegraph  Company. 

486.  Another  Illustration. 

487.  A  Qualification  of  this  Rule. 

§  475.  Validity  of  Contracts  by  Telegraph. — It  IS 
scarcely  necessary  to  say  that  a  valid  and  binding 
contract  may  be  made  by  telegraph. * 

§  476.      Telegram    a    Memorandum    under    Statute 

of  Frauds. — A  telegraphic  dispatch,  signed  by  the 
party  to  be  charged  or  by  his  duly  authorized  agent, 
will  constitute  a  memorandum  in  writing  within  the 
meaning  of  the  statute  of  frauds.2     Thus,  a  contract 

1  Calhoun  v.  Atchison,  4  Bush  (Ky.),  261;  s.  c,  96  Am.  Dec.  299; 
Trevor  v.  Wood,  36  N.  Y.  307;  s.  c,  93  Am.  Dec.  511. 

2  Watson  v.  Baker,  71  Tex.  739;  s.  c,  9  S.  W.  Rep.  867. 


438  CONTRACTS  BY  TELEGRAPH. 

of  employment,  made  by  a  written  telegraphic  mes- 
sage, is  one  which  is  reduced  to  writing  and  signed, 
within  the  meaning  of  the  Colorado  statute  of 
frauds.1  So,  where,  in  answer 'to  an  offer  to  buy 
land,  written  and  signed  instructions  of  acceptance 
are  given  in  the  usual  way  to  a  telegraph  company 
to  be  telegraphed,  and  a  telegram  is  sent  in  the 
usual  way  in  accordance  therewith,  there  is  a  suffi- 
cient contract  in  writing  within  the  statute  of 
frauds.2 

§  477.  When  Offer  Deemed  to  Have  been  Ac- 
cepted.— The  rule  on  this  subject  is  the  same  as  in 
the  case  of  contracts  by  written  correspondence 
through  the  mails.  In  such  a  case,  it  is  generally 
held  that  the  contract  is  binding  on  the  proposer  as 
soon  as  a  letter  accepting  the  proposal,  properly 
directed  to  the  proposer,  is  posted  by  the  recipient 
of  the  proposition,  whether  it  reaches  the  proposer 
or  not,  if  posted  without  unreasonable  delay,  and 
provided  further,  that  the  post  is  the  ordinary  and 
natural  mode  of  transmitting   acceptances.3     It  is 

1  Little  v.  Dougherty,  11  Colo.  103;   s.  c,  17  Pac.  Rep.  292. 

2  Godwin  v.  Francis,  39  L.  J.  (C.  P.^l  121;  s.  C,  L.  R.  5  (C.  P.)  121; 
22  L.  T.  (N".  S.)  338.    S.  P.,  McBlain  v.  Cross,  25  L.  T.  (N.  S.)  804. 

3  Household,  etc.  Ins.  Co.  v.  Grant,  L.  R.  4  Exch.  216;  Dunlop  v.  Hig- 
gins,  1  H.  L.  Cas.  381;  Duncan  v.  Topham,  8  C.  B.  225;  Adams  v. 
Lindsell,  1  B.  &  Aid.  681;  Be  Imperial  Land  Co.,  Harris'  Case,  L.  R.  7 
Ch.  App.  587;  Townsend's  Case,  L.  R.  13  Eq.  148;  Potter  v.  Sanders, 
6  Hare,  1;  Stocken  v.  Collin,  7  Mees.  &  W.  515;  Hebbs'  Case,  L.  R.  4 
Eq.  9;  Tayloe  v.  Merchants'  Fire  Ins.  Co.,  9  How.  (U.  S.)  390;  Trevor 
v.  Wood,  36  N.  Y.  307;  Abbott  v.  Shepard,  48  N.  H.  14;  Hutcheson  v. 
Blakeman,  3  Mete.  (Ky.)  80;  Hamilton  v.  Lycoming  Ins.  Co.,  5  Pa.  St. 
339;  Levy  v.  Cohen,  4  Ga.  1;  Falls  v.  Gaither,  9  Port.  (Ala.)  605,  614; 
Averill  v.  Hedge.  12  Conn.  424,  436;  Wheat  v.  Cross,  31  Md.  99;  s.  c,  1 
Am.  Rep.  28;  Potts  v.  Whitehead,  20  N.  J.  Eq.  55;  Washburn  v. 
Fletcher,  42  Wis.  152;  Haas  v.  Myers,  111  111.  421.  See  the  learned  note 
of  Mr.  Irving  Browne  in  32  Am.  Rep.  40,  in  which  these  and  other 
cases  are  reviewed.  Compare  Maclay  v.  Harvey,  90  HI.  525,  where  the 
letter  of  acceptance  was   not  posted  within  the  time  limited.    British 


THEIR    VALIDITY    AND    EFFECT.  439 

conceded  by  all  the  judicial  authorities  that  this  is 
the  rule  where  the  letter  accepting  the  proposal 
actually  arrives;  and  this  rule  has  been  applied  in 
several  cases  to  contracts  by  telegraph.1  But  the 
rule,  of  course,  does  not  apply  where,  under  the  ar- 
rangement between  the  parties,  as  disclosed  by  the 
facts,  the  formation  of  the  contract  is  made  de- 
pendent on  the  actual  communication  by  telegraph 
of  the  acceptance  to  the  party  proposing.2 

§  478.  Place  of  Contract:  Offer  in  one  State,  Ac- 
ceptance in  Another. — Applying  the  rule  to  the  case  of 
a  contract  by  telegraph,  it  is  held  that,  where  an  offer 
is  made  in  one  State  and  accepted  by  telegraph  in 
another,  the  contract  is  completed  in  the  latter  State 
by  sending  the  telegram,  notwithstanding  it  is  to  be 
performed  in  the  former  State.3 

§  479.  Certainty  in  the  Proposition  and  Accept- 
ance.— In  order  to  constitute  a  contract,  there  must 
be  a  definite  proposition,  and  an  acceptance  of  the 


and  American  Tel.  Co.  v.  Colson,  L.  R.  6  Exch.  108  (overruled  by 
Household,  etc.  Ins.  Co.  v.  Grant,  4 Exch.  Div.  216).  See  Langdell's  Cases 
on  Contracts,  §§  1-18.  In  Massachusetts  it  is  held,  contrary  to  the 
general  current  of  authority,  that  the  contract  is  not  complete  until  the 
letter  accepting  the  offer  has  been  received  by  the  party  making  the 
offer.  Lewis  v.  Browning,  130  Mass.  175  (approving  McCulloch  v. 
Eagle  Ins.  Co.,  1  Pick.  (Mass.)  278,  where  the  question  was  directly 
in  issue). 

1  Minnesota  Oil  Co.  v.  Collier  Lead  Co.,  4  Dill.  (U.  S.)  431;  Trevor 
v.  Wood,  36  N.  Y.  307;  Stevenson  v.  McLean,  5  Q.  B.  Div.  346. 

2  Haas  v.  Myers,  111  111.  421 ;  s.  C,  53  Am.  Rep.  631.  An  offer  of  an 
indefinite  quantity  at  a  price  named,  followed  by  a  telegram  accepting  a 
definite  quantity  at  such  price,  does  not  create  a  contract.  Moulton  v. 
Kershaw,  59  Wis.  316;  s.  c,  48  Am.  Rep.  516.  See  also  Beaupre  v. 
Pacific,  etc.  Tel.  Co.,  21  Minn.  155;  Kinghorne  v.  Montreal  Tel.  Co.,  18 
Up.  Can.  Q.  B.  60. 

3  perry  v.  Mount  Hope  Iron  Co..  15  R.  I.  380;  s.  c,  2  Am.  St.  Rep. 
902. 


440  CONTRACTS  BY  TELEGRAPH. 

proposition  as  made:1  nothing  short  of  this  consti- 
tutes that  aggregatio  mentium  which  is  essential  to 
the  very  idea  of  a  contract.  A  modified  acceptance 
is  a  rejection.  Jt  is  scarcely  necessary  to  say  that 
an  acceptance  must  be  made  to  the  party  proposing, 
or  to  his  authorized  agent:  an  acceptance  communi- 
cated to  a  stranger  is  a  mere  item  of  news,  and  no 
link  in  the  chain  which  unites  two  minds  when  a 
contract  is  made.2  Where  the  plaintiff  made  a 
proposition  by  letter  to  sell  from  3,500  to  5,000 
bales  of  cotton,  on  stated  terms,  and  the  party  to 
whom  the  offer  was  made  replied  by  cable:  "AW 
offer  firm  for  1,000  bales,"  etc.;  and  in  response  the 
following  dispatch  was  sent:  "Accept  the  offer — how 
much?*' — which  last  dispatch  was  never  delivered, 
— it  was  held,  in  an  action  against  the  telegraph 
company  for  damages,  that  the  last  dispatch,  if  it 
had  been  delivered,  would  have  completed  the  con- 
tract for  the  sale  of  1,000  bales  only,  and  that  the 
jury  should  have  been  so  instructed.3 

§  480.  View  that  the  Company  is  not  the  Agent 
of  the  Sender. — In  England  and  Scotland,  the  idea 
that  the  telegraph  company  is  the  agent  of  the 
sender  to  transmit  his  communication  to  the  ad- 
dressee, is  repudiated.4     Thus,  the  defendant  wrote 

1  Alexander  v.  Western  Union  Tel.  Co.,  67  Miss.  3S5;  s.  c,  7  South. 
Rep.  280. 

2  Hence,  telegrams  between  a  principal  and  agent  as  to  a  sale  of  laud, 
and  another  from  the  agent  to  a  third  person,  saying  that  an  offer  for  the 
land  was  accepted,  but  which  do  not  show  whether  such  person  was  or 
was  not  the  buyer,  do  not  constitute  a  contract.  Breckinridge  v.  Crocker, 
78  Cal.  529;  S.  C,  21  Pac.  Rep.  179. 

3  Western  Union  Tel.  Co.  v.  Way,  83  Ala.  542;  s.  C,  4  South.  Rep. 
844. 

*  Henkel  v.  Pape,  40  L.  J.  Exch.  15;  s.  c,  L.  R.  6  Exch.  7;  23  L.  T 
(N.  S.)  419;  19  W.  R.  106;  Verdin  v.  Robertson,  10  Sc.  Sess.  Cas 
(3d.  Series),  35. 


THEIR    VALIDITY    AND    EFFECT.  441 

to  the  plaintiffs  inquiring  upon  what  terms  they 
could  supply  him  with  fifty  rifles.  They  having 
answered,  stating  terms,  received  a.  telegram  from 
the  defendant  directing  them  to  forward  '  'the  rifles. ' ' 
They  accordingly  forwarded  fifty  rifles.  It  turned 
out  that  the  message  as  directed  to  be  sent  by  the 
defendant  was  for  three  rifles,  but  the  telegram  clerk 
had  mistaken  the  word  "three"  for  "the."  The 
defendant  refused  to  accept  more  than  three  rifles. 
It  was  held  that  the  defendant  was  not  bound  by 
the  mistake  of  the  telegraph  clerk,  and  the  plaint- 
iffs therefore  could  not  recover  for  the  price  of  the 
remaining  forty-seven  rifles.1  We  have  already 
seen  that,  under  the  decisions  in  England,  if  there 
is  a  mistake  in  a  message  proposing  a  contract,  and 
the  addressee  acts  upon  the  faith  of  the  message  as 
received,  he  cannot  recover  damages  from  the  com- 
pany, because  there  is  no  privity  of  contract  between 
him  and  them.2  The  doctrine  thus  stated  prevents 
him  from  holding  the  sender  of  the  message  to  its 
terms  as  delivered  to  him.  The  result  is,  that  he 
acts  on  it  at  his  peril,  and  if  there  is  a  mistake  in  it, 
in  consequence  of  which  he  suffers  loss,  he  cannot 
recover  damages  of  any  one.  Such  a  condition  of, 
the  law  illustrates  an  obtuse  sense  of  justice  on  the 
part  of  the  judges  by  whom  it  has  been  formulated. 
Judges  can  easily  formulate  rules  applicable  to  aew 
situations  and  new  agencies  of  this  kind,  which  will 
prevent  a  denial  of  justice,  if  they  want  to. 

§  481.       The   Same    View  in   an  American    Court. — 

The  Supreme  Court  of  Tennessee    has    recently  de- 
nied the  doctrine  that  the  telegraph  company  is  the 

1  Heukel  v.  Pape,  43  L.  J.  Exch.  15. 
*Ante,  §422. 


442  CONTRACTS  BY  TELEGRAPH. 

agent  of  the  sender  of  the  message,  and  attempted 
to  distinguish  the  cases  which  so  hold.  The  opin- 
ion is  weakened,  not  only  by  the  fact  that  it  is 
against  the  weight  of  American  authority,  but  also 
by  the  fact  that  it  is  self-contradictory.  The  plaint- 
iffs, in  answer  to  an  inquiry  by  telegraph,  sent  a 
dispatch  quoting  a  car-load  of  meat  at  $6.60  per 
hundred.  The  dispatch  was  erroneously  delivered 
to  their  correspondent  so  as  to  read  $6.30.  Their 
correspondent  ordered  the  meat;  it  was  duly  ship- 
ped; a  draft  was  drawn  on  them  against  the  ship- 
ment, and  they  refused  to  honor  it  to  a  greater 
amount  than  the  price  quoted  in  the  dispatch  as  re- 
ceived by  them.  Thereupon  the  plaintiffs  submit- 
ted to  the  reduction  in  the  price  paid,  and  sued  the 
telegraph  company  for  the  difference  between  the 
price  as  quoted  in  their  dispatch  as  delivered  to  the 
company  for  transmission  and  as  actually  transmit- 
ted by  it.  The  court  said  that  this  difference  was 
not  the  measure  of  damages,  and  then  proceeded  to 
hold',  under  the  circumstances  of  the  case,  that  it 
was.  The  court  below  had  proceeded  on  the  ground 
that  the  plaintiffs  had  made  the  company  their 
agent,  and,  as  between  themselves  and  their  cor- 
respondent, were  bound  by  its  mistake.  But  the 
Supreme  Court  denied  this  doctrine  in  the  follow- 
ing language,  in  its  opinion  by  Folkes,  J.:  "The 
minds  of  the  party  who  sends  a  message  in  certain 
words,  and  the  party  who  receives  the  message  in 
entirely  different  words,  have  never  met.  Neither 
can,  therefore,  be  bound  the  one  to  the  other,  un- 
less the  mere  fact  of  employment  of  the  telegraph 
company  as  the  instrument  of  communication  makes 
the  latter  the  agent   of  the    sender,     Upon   what 


THEIR    VALIDITY    AND    EFFECT.  443 

principle  can  it  be  said  such  an  agency  arises?  The 
telegraph  company  is  in  no  sense  a  private  agent. 
It  is  clothed  by  the  State  with  certain  privileges;  it 
is  allowed  to  exercise  the  right  of  eminent  domain. 
In  exchange  for  such  franchises  it  is  onerated  with 
certain  duties,  one  of  which  is  the  obligation  to  ac- 
cept, and  transmit  over  its  wires,  all  messages  de- 
livered to  it  for  that  purpose.  The  parties  who  re- 
sort to  this  instrumentality  have  no  other  means  of 
obtaining  the  benefits  of  rapid  communication, 
which  is  the  price  of  its  existence.  They  have  no 
opportunity  and  no  power  to  supervise  or  direct  the 
manner  or  means  which  the  company  uses  in  the 
discharge  of  its  duties  to  the  public  in  the  transmis- 
sion of  messages  for  particular  individuals.  They 
can  only  deliver  to  the  company  a  legible  copy  of 
what  they  wish  communicated,  with  no  expectation 
that  such  paper  is  to  be  carried  to  the  party  ad- 
dressed ;  and  their  connection  with  the  company 
there  and  then  ceases.  They  have  contracted  with 
the  company  to  transmit  the  words  of  the  message 
to  the  party  addressed,  through  its  own  agents,  and 
with  its  own  means.  The  party  receiving  the  mes- 
sage knows  that  he  is  not  obtaining  any  communi- 
cation direct  from  the  sender,  but  that  he  is  receiv- 
ing what  the  company  has  taken,  and  changed  the 
form  of,  from  the  paper  on  which  it  was  written, 
transmitted  by  electricity  over  the  wires  of  the  com- 
pany, and  reduced  to  writing  at  its  destination  by 
an  agent  of  the  company;  and  that  it  only  repre- 
sents what  was  written  by  the  sender,  in  the  event 
that  there  has  been  no  imperfection  in  the  mechan- 
ism of  the  company,  nor  negligence  in  the  servants 
of  the  company.     Knowing  the  scope  of  the  em- 


444  CONTRACTS  BY  TELEGRAPH. 

ployment  and  the  methods  of  transmission,  the  re- 
ceiver should  be  held  to  know  that  the  sender  is 
bound  by  the  contents  of  the  telegram  as  received, 
only  so  far  as  it  is  a  faithful  reproduction  of  what  is 
sent.  He  knows,  furthermore,  that  if  he  acts  on 
the  telegram,  and  it  should  turn  out  to  have  been 
altered  by  the  negligence  or  wrongful  act  of  the 
company,  the  latter  is  liable  to  him  for  such  injury 
as  he  may  sustain  thereby.  Ordinarily,  there  is  no 
relation  of  master  and  servant  between  the  sender 
of  the  telegram  and  the  company.  Where  this  re- 
lationship does  not  exist,  the  principal  is  not  re- 
sponsible for  the  torts  of  the  agent;  and  the  negli- 
gent delivery  of  an  altered  message,  when  acted  on 
by  the  receiver  to  his  detriment,  is  a  tort  for  which 
the  telegraph  company  alone  is  responsible.  The 
company  retaining  exclusive  control  of  the  manner 
of  performance,  and  of  its  own  employees  and  in- 
strumentalities, the  sender  of  the  message  being 
absolutely  without  voice  in  the  matter,  it  seems  to 
us  that  the  position  of  the  compan}r  to  its  employer 
is  that  of  'independent  contractor,'  as  defined  and 
understood  in  the  well-settled  class  of  cases  where 
the  employer  is  held  to  be  not  responsible  for  the 
negligence  of  the  contractor  in  the  performance  of 
his  work  or  undertaking.  The  many  and  marked 
differences  between  the  employment  of  such  com- 
panies to  transmit  a  dispatch  and  the  employment 
of  a  private  person  to  deliver  a  verbal  message,  are 
so  manifest  that  we  cannot  assume  the  liability  of 
the  sender  in  the  first  instance,  from  his  conceded 
liability  in  the  last,  for  the  negligence  of  the  instru- 
mentality employed.  Such  a  holding  not  only  does 
violence    to    well-settled    principles    of  the   law    of 


THEIR    VALIDITY    AND    EFFECT.  445 

agency,  but  may  lead  to  the  absolute  ruin  of  the 
party  employing  this  useful,  and  now  necessary, 
public  medium  of  rapid  transmission  of  intelligence; 
so  that  every  consideration  of  public  policy  would 
seem  to  point  to  a  different  result,  unless  the  courts 
find  themselves  constrained  by  the  great  weight  of 
authority  to  uphold  the  contention  here  made."1 
But,  as  the  court  proceeded  to  affirm  the  judgment, 
it  is  doubtful  whether  this  language  can  be  regarded 
as  more  than  the  dictum  of  the  particular  judge." 

§  482.  Weight  of  American  Doctrine  to  the  Con- 
trary.— It  is  obvious,  however,  that  the  foregoing 
principle  cannot  be  of  universal  application.  Many 
cases  will  arise  where  the  material  fact  will  be,  not 
what  was  the  message  which  was  delivered,  but 
what  was  the  message  which  was  received.  The 
party  who  originally  sends  an  order  by  telegraph 
makes  the  telegraph  company  his  agent  for  its  trans- 
mission and  delivery,  and,  as  between  himself  and 
the  person  to  whom  it  is  addressed,  he  is  bound  by 
the  message  as  delivered.  It  follows  that  where  the 
legal  rights  of  the  receiver  of  the  message  founded 
upon  an  order  transmitted  therein,  are  in  question, 
he  is  entitled  to  put  in  evidence  the  message  actu- 
ally received  as  the  original.2 

§  483.  Ratification  of  Such  Agency. — Even  if  it 
is  doubtful  whether  the  sender  of  the  message  is 
bound  by  a  mistake  of  the  telegraph  company  in 
transmitting  it,  on  the  theory  of  its  being  his  agent, 

1  Pepper  v.  Western  Union  Tel.  Co.,  87  Tenn.  554;  s.  C,  40  Alb.  L.  J. 
45;  22  Ohio  L.  J.  115;  4  L.  R.  A.  660;  11  S.  W.  Rep.  783. 

2  Savejand  v.  Green,  40  Wis.  4:51 ;  Ayer  v.  Western  Union  Tel.  Co.,  79 
Me.  493;  S.  C,  1  Am.  St.  Rep.  353,  357;  Durkee  v.  Vermont  Central  R. 
Co.,  29  Vt.  127;  Morgan  v.  People,  59  111.  58.  Dicta  to  the  same  effect 
will  be  found  in  Wilson  v.  Railroad  Co.,  31  Minn.  481,  and  in  How  ley  v. 
Whipple,  48  N.  H.  488. 


446  CONTRACTS  BY  TELEGRAPH. 

he  may  put  the  question  at  rest  by  ratifying  the 
mistake,  as  where  a  principal  gave  instructions  to 
his  factor  to  sell  grain,  which  instructions  were  er- 
roneously transmitted,  in  consequence  of  which  the 
grain  was  sold  at  a  loss,  and  subsequently  the  prin- 
cipal accepted  part  payment  from  his  agent,  after 
having  acquired  knowledge  of  the  mistake.1 

§  484.  Rights  of  Sender  of  Message  against  Com- 
pany in  Such  a  Case. — The  American  rule,  in  short, 
is  that  the  sender  of  a  telegraphic  message  con- 
taining a  proposal  for  a  contract  of  sale  or  other 
contract,  makes  the  telegraph  company  his  agent, 
and,  as  between  himself  and  the  person  to  whom 
the  message  is  sent,  is  bound  by  the  terms  of  the 
message  as  delivered.  If,  therefore,  the  message, 
as  delivered,  contains  a  proposal  different  from  the 
message  as  started,  the  sender  must  stand  by  the 
proposition  and  sue  the  telegraph  company,  his 
agent,  for  the  damages  which  he  has  sustained 
through  its  misfeasance.2  In  such  a  case  the  meas- 
ure of  the  damages  which  the  sender  will  be  entitled 
to  recover  will  be  what  he  has  actually  lost  by  the 
negligence  of  the  company. 

1  Culver  v.  Warren,  36  Kan.  391 ;  s.  C,  13  Pac.  Rep.  577. 

2  Ayer  v.  Western  Union  Tel.  Co.,  79  Me.  493;  s.  c,  1  Am.  St.  Rep. 
353 ;  Telegraph  Company  v.  Schotter,  71  Ga.  760.  Contrary  to  the  doc- 
trine of  the  text  is  the  case  of  Pegram  v.  Western  Union  Tel.  Co.,  100 
N.  C.  28;  s.  c,  6  Am.  St.  Rep.  567;  6  S.  E.  Rep.  557.  This  decision  is 
inexplicably  wrong.  The  plaintiff,  who  was  a  broker,  had  telegraphed 
to  his  correspondents  as  follows :  "Party  offers  one  hundred  shares  C.  C. 
&  A.  at  forty-three.  Answer  quick."  This,  it  is  perceived,  was  a  prep- 
osition to  the  party  addressed  for  a  sale  of  shares  of  the  stock  named  at 
the  price  named.  The  message,  as  received  at  its  destination  and  deliv- 
ered, read  "forty"  instead  of  "forty-three."  In  reply  to  this  the 
plaintiff  received  the  following  dispatch:  "Will  take  the  hundred 
shares;  draw  at  sight,  with  stock  attached."  Thereupon,  at  once,  on 
the  same  day,  the  plaintiff  purchased  101  shares  of  the  stock  named, 
and  made  his  draft  on  his  correspondents  for  $4,343,  the  price  of  the 


THEIR    VALIDITY    AND    EFFECT.  447 

§  485.  Illustration  :  Sender  must  Fulfill  Offer  as 
Delivered,  and  Seek  Recourse  of  the  Telegraph  Com- 
pany.— The  plaintiff  telegraphed  to  a  correspondent 
the  following  proposition:  "Can  deliver  hun- 
dred turpentine  at  sixty-four."  As  delivered  to 
his  correspondent  by  the  telegraph  company,  the 
message  read:  "Can  deliver  hundred  turpen- 
tine at  sixty,"  the  word  "four"  being  omitted. 
The  receiver  of  the  message  immediately  tele- 
graphed his  acceptance.  The  sender  shipped  the 
turpentine  and  drew  for  the  price  at  sixty-four. 
The  receiver  refused  to  pay  more  than  sixty.  The 
sender  accepted  the  sixty,  and  sued  the  telegraph 
company  for  the  difference  between  sixty  and  the 
market  price.     It  was   urged  that  the  sender  was 

stock  at  43,  and  sent  the  same  to  a  bank  for  collection,  with  the  stock 
attached,  with  instructions  to  the  bank  to  deliver  the  stock  when  the 
draft  should  be  paid.  When  the  bank  presented  the  draft  for  payment, 
the  intending  vendees  were  surprised  at  the  amount,  and  called  upon 
the  plaintiff  for  an  explanation,  who  at  once  replied  :  "My  offer  was 
forty-three  plainly,  and  you  replied,  '  Wrill  take  stock,'  and  bought  on 
your  reply.'"  The  plaintiff's  correspondents  made  known  to  him  the  form 
in  which  the  dispatch  had  been  transmitted  to  them,  and  he  refusing 
to  stand  by  the  contract  according  to  the  proposition  as  the  telegraph 
company  had  delivered  it  to  them,  they  brought  an  action  against  him 
and  properly  recovered  what  they  had  lost  by  reason  of  his  refusing  to 
stand  by  his  proposition  as  they  had  received  it.  In  that  action  he 
notified  the  telegraph  company  to  defend,  which  it  declined  to  do. 
Thereupon  he  brought  an  action  against  the  telegraph  company  to  re- 
cover over  from  it  what  he  had  been  compelled  to  pay  his  correspondents 
by  reason  of  the  mistake  of  the  company.  It  is  to  be  regretted  that, 
upon  a  case  so  plain,  an  American  court  should  have  been  found  which 
could  hold  that  the  plaintiff  could  not  recover.  It  was  not  a  case  of 
speculative  or  remote  damages,  but  of  damages  actually  sustained 
through  a  plain  blunder  of  the  telegraph  company,  which  the  plaintiff 
had  constituted  his  agent  to  make  the  proposition  of  sale  to  his  cor- 
respondents. Davis,  J.,  dissented,  on  the  ground  that  the  damages 
which  the  plaintiff  sustained  were  the  direct  consequences  of  the  negli- 
gence of  the  telegraph  company.  If  this  absurd  decision  is  law,  then  a 
plaintiff  cannot  recover  of  his  own  agent  the  damages  which  he  In- 
directly sustained  through  the  negligence  of  such  agent. 


448  CONTRACTS  BY  TELEGRAPH. 

not  bound  to  accept  the  sixty,  as  that  was  not  his 
offer.  But  the  court  held  that  there  was  a  com- 
pleted contract  at  sixty,  that  the  sender  was  bound 
to  fulfill  it,  and  that  he  couid  recover  his  conse- 
quent, loss  of  the  telegraph  company.1 

§  486.  Another  illustration. — Another  excellent 
illustration  of  the  rule  that  the  party  who  makes  a 
communication  to  another  is  bound  by  the  mistake 
of  his  agent  appointed  by  him  to  make  it,  under 
the  rule  of  respondeat  superior,  is  found  in  a  case 
where,  the  company's  operator  being  absent,  the 
defendant  verbally  requested  R.,  who  was  not  a 
servant  of  the  company,  to  send  a  certain  telegram, 
promising  to  guarantee  the  payment  of  a  bill  for 
goods.  It  was  held  that  R.  became  the  defendant's 
agent ;  and  he  having  by  mistake  telegraphed  an 
original  instead  of  a  collateral  promise,  that  the  de- 
fendant became  responsible  as  an  original  debtor 
for  the  goods  sent.2 

§  487.  A  Qualification  of  the  Rule. — A  qualifica- 
tion to  the  foregoing  rule  seems  to  exist  on  principle, 
which  may  be  stated  thus  :  The  party  who  first  in- 
vites the  use  of  the  telegraph  as  the  means  of  com- 
munication in  respect  of  the  particular  transaction, 
impliedly  agrees  to  take  the  risk  of  any  mistakes 
which  may  be  made  by  the  telegraph  company. 
Somewhat  in  line  with  this,  though  not  fully  recog- 
nizing it,  is  the  following  language  of  Redfield,  C. 
J.  :  "In  regard  to  the  particular  end  of  the  line 
where  inquiry  is  first  to  be  made  for  the  original,  it 
depends  upon   which  party  is   responsible  for  the 

1  Telegraph  Company  v.  Schotter,  71  Ga.  760.  See  also  Ayer  v. 
Western  Union  Tel.  Co.,  79  Me.  493;  s.  c,  1  Am.  St.  Rep.  353,  where  a 
similar  ruling  was  made  on  similar  facts. 

2  Dunning  v.  Roberts,  35  Barb.  (1ST.  Y.)  463. 


THEIR    VALIDITY    AND    EFFECT.  449 

transmission  across  the  line,  or,  in  other  words, 
whose  agent  the  telegraph  is.  The  first  communi- 
cation in  a  transaction,  if  it  is  all  negotiated  across 
the  wires,  will  only  be  effective  in  the  form  in 
which  it  reaches  its  destination.  *  *  *  But 
where  the  party  to  whom  the  communication  is 
made  is  to  take  the  risk  of  transmission,  the  mes- 
sage delivered  to  the  operator  is  the  original,  and 
that  is  to  be  produced,  or  the  nearest  approach  to 
it,  by  copy  or  otherwise."  1 

1  Durkee  v.  Vermont,  etc.  R.  Co.,  29  Vt.  127,  140;  approved  in  Mor- 
gan v.  People,  59  111.  58. 

(29) 


450  TELEGRAPHIC    DISPATCHES    AS    EVIDENCE. 


CHAPTER   XVI. 


TELEGRAPHIC  DISPATCHES  AS  EVIDENCE. 


Section. 

492.  Relevancy  of  Telegraphic  Dispatches  as  Evidence. 

493.  Obligation  of  Telegraph  Company  to  Produce  them  under  Legal 

Process — Their  Inviolability. 

494.  Statutory  Protection  of  Such  Messages. 

495.  Sufficiency  in  the  Description  in  the  Subpoena  Duces  Tecum. 

496.  Which  is  the  Original,  the  Dispatch  as  Sent  or  the  Dispatch  as 

Received? 

497.  When  the  Message  as  Sent  is  Deemed  the  Original. 

498.  Proof  of  Authenticity. 

499. ,  Presumption  that  the  Message  as  Delivered  to  the  Company 
was  Delivered  to  the  Person  Addressed. 

500.  Illustration. 

501.  Delivery  not  Proved  by  Producing  Reply. 

502.  Under  what  Circumstances  the  Copy  is  Admissible. 

503.  Illustrations. 

504.  When  Oral  Evidence  Admissible. 

505.  Illustration :     Secondary  Evidence  Admissible. 

506.  When  Parol  Evidence  Competent  without  Notice  to  Produce. 

507.  Has  Evidentiary  Effect  of  a  Letter. 

508.  Notice  of  Injunction  by  Telegram. 

509.  English  Practice :    How  Such  Notice  Communicated  by  Tele- 

gram, and  Duty  of  Sheriff's  Officer  Respecting  Same. 


§  492.  Relevancy  of  Telegraphic  Dispatches  as 
Evidence  —  Declarations —  Contracts. —  Telegraphic 
messages  are  admissible  in  evidence  under  a  variety 
of  circumstances    and    for    a   variety   of  purposes. 


THEIR    PRODUCTION,    ADMISSIBILITY,   ETC.  451 

Such  a  message  is,  for  instance,  when  supplemented 
by  the  necessary  oral  proof,  the  best  evidence  that 
the  particular  message  was  sent.  It  may,  as  already 
seen,  in  connection  with  telegrams  or  letters,  form 
a  link  in  the  chain  of  correspondence  which  consti- 
tutes a  contract.1  It  may  also  be  a  memorandum 
of  an  agreement  to  take  a  case,  for  instance,  of  the 
sale  of  goods,  out  of  the  statute  of  frauds.2  It  may 
contain  a  proposition,  or  the  acceptance  of  a  proposi- 
tion, such  as  will,  in  law,  be  binding  on  the  sender 
as  an  obligation,  and  this  although  it  may  have 
been  negligently  altered  by  the  company  (the 
sender's  agent)  in  its  transmission.3  It  is  also  ad- 
missible against  the  sender,  as  evidence  of  his 
declarations,  and  also  as  evidence  tending  to  show 
communications  to  the  person  addressed,  if  proved 
to  be  in  the  sender's  handwriting,  and  to  have  been, 
received  at  the  telegraph  office,  and  sent  over  the 
wires  properly  directed  to  a  person  who  was  then 
living  at  the  place  of  its  destination.4  It  may 
furnish  an  important  link  in  a  chain  of  circumstan- 
tial evidence  in  a  criminal  prosecution.  For  instance,, 
a  telegraphic  message  offering  to  sell  horses  is  ad- 
missible in  evidence  against  a  defendant  charged 
with  stealing    the  horses,  in  connection  with   other 

1  A  telegraphic  dispatch,  in  reply  to  one  delivered  to  a  boat  at  Lex- 
ington, on  the  Missouri  River,  agreeing  to  transport  freight,  without 
naming  to  what  place,  has  been  allowed  to  be  read  to  the  jury  as  evi- 
dence of  a  contract  by  the  master  to  transport  to  St.  Louis.  Taylor  v. 
The  Robert  Campbell,  20  Mo.  254.    See  ante,  §  475. 

2  Ante,  §  476. 
8  Ante,  §  482. 

4  Commonwealth  v.  Jeffries,  7  Allen  (Mass.),  548.    But  telegraphic- 
dispatches  from  the  wife  of  one  of  the  defendants,  in  an  action  for  a 
con  spiraea,  neither  written  nor  sent  by  either  of  them,  are  not  admis- 
sible as  evidence  against  them;  for,  as  the  declarations  of  the  vih  ,  tli< 
could  not  affect  even  her  husband.     Benford  v.  Tanner,  40  Pa.  St.  fl. 


452         TELEGRAPHIC    DISPATCHES    AS    EVIDENCE. 

circumstances  tending   to  show  his  preparation  for 
flight: 

§  493.      Obligation  of  Telegraph  Company   to   Pro- 
duce them  under  Legal  Process — Their   Inviolability. 

— Telegraphic  messages  are  not  'privileged  communi- 
cations: Telegraph  companies  are  not  exempt 
from  the  obligation  of  producing  them  in  compli- 
ance with  legal  process ;  for  instance,  a  subpoena 
duces  tecum,  issued  b-y  the  clerk  of  a  court  of  crim- 
inal jurisdiction  at  the  request  of  a  grand  jury.3 
The  manager  of  a  local  telegraph  office,  when  prop- 
erly served  with  process,  cannot  refuse  to  produce 
dispatches  therein  called  for,  on  the  ground  that  to 
<do  so  would  be  a  violation  of  his  duty  to  the  com- 
pany ;  and  the  court  does  not  exceed  its  jurisdiction 
in  committing  such  a  witness  for  contempt  in 
refusing  to  obey  the  subpoena,4 — provided  the  dis- 
patches are  sufficiently  identified  therein,  in  con- 
formity with  the  rule  stated  in  the  next  section.5 
Nor  is  it  any  reason  for  refusing  to  obey  such  a 
subpoena,  that  there  is  a  statute  providing  for  the 
punishment  of  any  officer  or  servant  of  a  telegraph 
company  for  disclosing  the  contents  of  any  dispatch. 
Such  a  statute  does  not  apply  in  such  a  case,6  for 'in 
the  construction  of  such  statutes  it  is  understood 
that  there  is  always  an  exception  in  favor  of  legal 


1  State  v.  Espinozei,  20  Nev.  209;  s.  c,  19  Pac.  Rep.  677. 

-  State  v.  Litchfield,  58  Me.  267;  Ex  parte  Brown,  72  Mo.  83;  S.  c,  37 
Am.  Rep.  426;  National  Bank  v.  National  Bank,  7  W.  Va.  544;  Re  Wad- 
dell,  8  Jur.  (X.  S.)  181,  Part  2;  S.  P.,  Be  Ince,  20  L.  T.  (X.  S.)  421. 

3  Ex  parte  Brown,  7  Mo.  App.  484;  Ex  parte  Brown,  72  Mo.  83;  s.  c, 
37  Am.  Rep.  426. 

4  Ex  parte  Brown,  7  Mo.  App.  484. 

5  Ex  parte  Brown,  72  Mo.  83;  s.  C,  37  Am.  Rep.  426. 

6  Ex  parte  Brown,  7  Mo.  App.  4S4;  Woods  v.  Miller,  55  Iowa,  168; 
.S.  C,  39  Am.  Rep.  170. 


THEIR    PRODUCTION,     ADMISSIBILITY,   ETC.  453 

process.1  Nor  is  the  rule  confined  to  process  issuing 
in  criminal  cases.  A  telegraph  operator,  having 
possession  of  a  telegraphic  dispatch,  may  be  com- 
pelled by  a  party  to  the  suit,  who  was  also  a  party 
to  the  telegraphic  communication,  and  who  is  seek- 
ing to  prove  a  contract  by  it,  to  produce  it  in  court r 
although  there  is  a  statute  forbidding  telegraph  op- 
erators to  divulge  the  contents  of  dispatches  to  any 
one  except  the  person  addressed.'2  The  court  reason 
as  follows:  "That  the  statute  does  not  prohibit 
the  production  and  introduction  of  messages  as 
evidence,  under  an  order  of  court  for  that  purpose, 
might  be  demonstrated  by  saying  that  the  person 
who  produces  them  in  obedience  to  the  order  is  not 
guilty  of  voluntarily  disclosing  their  contents,  and 
no  person  can  be  punished  for  an  act  which  is  not 
voluntary."3  By  statute,  in  England,4  where  the 
telegraph  system  has  passed  under  the  control  of 
the  government  and  become  a  part  of  the  postal 
service,  every  written  or  printed  message  or  com- 
munication delivered  at  a  post-office  for  the  purpose 
of  being  transmitted  by  a  postal  telegraph,  and 
every  transcript  thereof  made  by  any  person 
acting  in  pursuance  of  the  orders  of  the 
Postmaster-General,   shall   be  a    post-letter,  within 

1  Lee  v.  Birrel,  3  Camp.  337.  In  this  case  the  clerk  of  an  official  had, 
on  entering  upon  his  office,  taken  an  oath  not  to  disclose  anything  that 
he  should  learn  in  that  capacity.  But  Lord  Elleuborough  nevertheless 
required  him  to  produce  a  book  making  a  disclosure  of  the  secrets  of 
his  office,  saying:  "I  think  that  the  oath  contains  an  implied  excep- 
tion of  the  evidence  to  be  given  in  a  court  of  justice,  in  obedience  to  a 
writ  of  subpoena.  The  witness  must  produce  the  book,  and  answer  all 
questions  respecting  the  collection  of  the  tax,  as  if  no  such  oath  h^'l 
been  administered  to  him." 

2  Woods  v.  Miller,  55  Iowa,  168;  s.  c,  39  Am.  Rep.  170. 

3  Ibid,  per  Adams,  C.  J. 

4  Telegraph  Act,  1869,  32  and  33  Vict.  ch.  73,  §  23. 


454         TELEGRAPHIC    DISPATCHES    AS    EVIDENCE. 

the  meaning  of  the  7  Will.  4  and  1  Vict.  ch.  36;  pro- 
vided always,  that  nothing  in  the  act  contained 
shall  have  the  effect  of  relieving  any  officer  of  the 
post-office  from  any  liability  which  would,  but  for 
the  passing  of  the  act,  have  attached  to  a  telegraph 
company  or  to  any  other  company  or  person,  to  pro- 
duce in  any  court  of  law,  when  duly  required  so  to 
do,  any  such  written  or  printed  message  or  com- 
munication. 

§  494.  Statutory  Protection  of  Such  Messages. — 
Statutes  have  been  enacted  in  some  of  the  States 
punishing  the  tampering  with  or  divulging  the  con- 
tents of  telegraphic  messages  :  of  which  a  recent 
statute  of  North  Carolina  may  be  cited  as  an  ex- 
ample:  "Any  person  who  wrongfully  obtains,  or 
intends  to  obtain,  any  knowledge  of  a  telegraphic 
message  by  connivance  with  a  clerk  *  *  *  or 
other  employee  of  a  telegraph  company,"  or,  being- 
such  employee,  willfully  divulges,  "to  any  but  the 
persons  for  whom  it  was  intended,  the  contents  of  a 
telegraphic  message  or  dispatch  entrusted  to  him 
for  transmission  or  delivery,  *  *  *  or  willfully 
refuses  or  neglects  duly  to  transmit  or  deliver  the 
same  ;"  "or  any  person  who  willfully  and  without 
authority  opens  or  reads  a  sealed  letter  or  telegram, 
or  publishes  the  same,  knowing  it  to  have  been 
opened  or  read  without  authority,  shall  be  guilty 
of  a  misdemeanor."  1  A  recent  statute  of  Connec- 
ticut prescribes  a  penalty  for  tapping  telegraph  or 
telephone  wires.2 

§  495.  Sufficiency  of  the  Description  in  the  Suh- 
poena  Duces   Tecum. — It   was   held   ill  the  St.  Louis 

1  N.  C.  Act  Jan.  31,  1S89;  Laws  1889,  ch..41,  p.  61. 
I '  miu.  Act  March  20,  1SS9;   Pub.  Acts  1889,  ch.  30,  p.  18. 


THEIR    PRODUCTION,   ADMISSIBILITY,   ETC.  455 

Court  of  Appeals  that  a  call,  in  a  subpoena  duces 
tecum,  issued  by  the  clerk  of  a  criminal  court,  at 
the  request  of  the  grand  jury,  for  any  and  all  mes- 
sages passing  between  certain  named  parties  during 
the  last  six  months,  is  sufficiently  certain  to  require 
the  local  agent  of  the  telegraph  company  to  pro- 
duce the  dispatches,  without  making  further  refer- 
erence  to  their  subject-matter.1  Lewis,  P.  J., 
dissented,  holding  that  a  subpoena  duces  iecwm  must 
give  such  a  description  of  the  paper  to  be  produced 
as  will  identify  it  as  the  particular  paper  called  for; 
that  a  description  so  general  in  its  terms  as  that 
just  recited  does  not  sufficiently  describe  the  papers, 
and  that  such  a  subpoena  should  not  be  enforced 
by  process  of  contempt.  He  further  reasoned  that 
a  subpoena  which  calls  for  a  considerable  number  of 
papers,  for  the  manifest  purpose  of  ascertaining 
whether  any  of  them  may  be  found  to  be  material 
to  the  matters  under  judicial  investigation,  is  a 
search;  and  that,  if  calculated  to  compel  the  pro- 
duction of  private  papers  not  material  to  the 
investigation,  it  is  an  unreasonable  search,  within 
the  meaning  of  the  constitutional  inhibition  against 
"unreasonable  searches  and  seizures."  Another 
subpoena  duces  tecum  having  been  issued  at  a  sub- 
sequent term  of  the  same  court,  at  the  request  of 
the  grand  jury,  directed  to  the  same  person,  com- 
manding him  to  produce  all  telegraphic  dispatches, 
or  copies  of  the  same,  in  the  telegraph  office  of 
which  he  was  manager,  passing  between  certain 
parties  named  "within  fifteen  months  last  past,"  an 
application  for  habeas  corpus  was  made  before  the 
Supreme  Court  of  Missouri.     The  Supreme  Court 

1  Ex  parte  Browu,  7  Mo.  App.  484. 


456  TELEGRAPHIC    DISPATCHES    AS    EVIDENCE. 

took  the  view  taken  by  Lewis,  P.  J.,  in  his  dis- 
senting opinion  in  the  St.  Louis  Court  of  Appeals, 
and  discharged  the  prisoner.  In  reaching  this  con- 
clusion the  Supreme  Court  was  obliged  to  dissent 
from. the  view  taken  by  Judge  Dillon,  of  the  United 
States  Circuit  Court,  in  an  important  trial.1  In 
giving  the  opinion  of  the  court,  Henry,  J.,  said: 
"Here,  communications  at  different  times  within  a 
period  of  fifteen  months,  sent  or  received  by  the 
parties  named,  are  called  for.  The  date,  title,  sub- 
stance, or  subject-matter  of  none  of  them  is  given, 
and  it  is  utterly  impossible  that  it  could  have  been 
made  to  appear,  without  more,  that  any  of  the  mes- 
sages were  material  as  evidence  before  the  grand 
jury.  Moreover,  it  not  only  called  for  all  messages 
between  the  parties  named,  but  for  all  which  may 
have  been  sent  or  received  by  either  of  the  parties, 
to  or  from,  any  person  on  the  face  of  the  earth.  A 
compliance  with  the  order  might  have  resulted  in 
the  production  of  confidential  communications  be- 
tween husband  and  wife,  client  and  attorney, 
confessor  and  penitent,  parent  and  child.  Matters 
which  it  deeply  concerned  the  parties  to  keep  secret 
from  the  world,  and  of  no  importance  or  value  as 
evidence  in  any  cause,  might  thus  be  disclosed,  to 
the  annoyance  and  shame  of  the  only  persons  in- 
terested. Incidents  in  the  lives  of  members  of 
families  which  the  happiness  and  welfare  of  the 
household  require  to  be  kept  secret,  might  be  ex- 
posed, and  offenses  not  recognizable  by  the  law, 
long  since  committed  and  condoned,  brought  to 
light  and  hawked  through  the  country  by  scandal- 
mongers, to  the  disturbance  of  the  peace  of  society 

1  United  States  v.  Babcock,  3  Dill.  (U.  S.)  567. 


THEIR    PRODUCTION,  ADMISSIBILITY,   ETC.  457 

and  the  destruction  of  the  happiness  of  whole 
households.  It  is  no  answer  to  this  that  the  obli- 
gation of  secrecy  imposed  by  law  on  grand  juries 
would  prevent  such  exposure.  It  is  enough  to  dis- 
turb and  harass  a  man,  that  twelve  of  his  neighbors, 
though  sworn  to  secrecy,  have  acquired  knowledge 
diminishing  their  respect  for  him,  which  they  had 
no  right  to  obtain,  and  they  may  be  the  very  twelve 
men  with  whom,  above  all  others,  he  most  desired 
to  be  in  good  repute.  Such  an  inquisition,  if  toler- 
ated, would  destroy  the  usefulness  of  this  most  im- 
portant and  valuable  mode  of  communication  by 
subjecting  to  exposure  the  private  affairs  of  persons 
intrusting  telegraph  companies  with  messages  for 
transmission,  to  the  prying  curiosity  of  idle  gossips, 
or  the  malice  of  malignant  mischief-makers."  ' 

§  496.  Which  is  the  Original,  the  Dispatch  as 
Sent  or  the  Dispatch  as  Received? — It  frequently 
becomes  a  question  which  is  the  original,  the  dis- 
patch as  sent  or  the  dispatch  as  received  ;  and  the 
question  becomes  very  important  in  cases  where  it 
is  garbled  in  transmission.  As  suggested  in  the 
foregoing  chapter,2  this  generally  depends  upon  the 


1  Ex  parte  Brown,  72  Mo.  83;  s.  c,  37  Am.  Rep.  426,  431.  See  also 
Shaftesbury  v.  Arrowsmith,  4  Ves.  66.  See  a  very  learned  and  elabo- 
rate paper  on  the  inviolability  of  telegrams,  read  by  Henry  Hitchcock, 
Esq.,  before  the  American  Bar  Association  in  1879  (5  South.  Law  Rev. 
(N.  S.)  473  et  seq.),  in  which  the  writer  criticises  Ex  parte  Brown,  7 
Mo.  App.  484.  That  such  communications  are  not  privileged,  see  Com. 
v.  Jeffries,  7  Allen  (Mass.),  548;  National  Bank  v.  National  Bank,  7  W. 
Va.  544;  Heinslee  v.  Freedman,  2  Pars.  Sel.  Cas.  274.  On  a  subpoena 
from  the  Irish  Court  of  Bankruptcy  to  produce  all  telegrams  sent  by 
the  bankrupt  from  a  certain  date,  the  secretary  of  the  post-office  was 
ordered  to  produce  the  documents  sought  for,  the  court  intimating  that 
such  subpoenas  should  be  prepared  so  as  to  meet  the  convenience  of  the 
official.     lie  Thomas  Smith,  7  L.  R.  Ir.  286. 

2  Ante,  §  480  et  seq. 


458         TELEGRAPHIC    DISPATCHES    AS    EVIDENCE. 

solution  of  the  question  which  party  to  the  corre- 
spondence has  made  the  telegraph  company  its 
agent  for  transmitting  the  dispatch  in  question  ;  if 
it  is  garbled  by  the  agent  of  the  sender,  he  is  bound 
by  it  as  delivered, — ;just  as  a  merchant  or  other 
person  is  bound  by  the  terms  of  a  letter  dictated  to 
his  secretary  and  erroneously  transcribed  by  him. 
Such  a  message,  as  delivered  to  the  person  ad- 
dressed, is  the  primary  and  best  evidence  of  its 
contents,  as  between  the  sender  and  the  receiver, 
when  there  is  no  proof  of  mistake,  and  the  sender 
has  taken  the  initiative,  making  the  telegraph  com- 
pany his  agent  for  the  transmission.1 

§  497.  When  the  Message  as  Sent  is  Deemed  the 
Original. — Where  the  general  inquiry  is  what  mes- 
sage was  in  fact  sent,  —  and  this  will  be  the 
scope  of  the  inquiry  in  most  cases,  civil  and  crim- 
inal, —  the  message  which  is  sent,  and  not  the 
one  which  is  received  and  transcribed  at  the 
other  end  of  the  line,  is  the  original.  The  lat- 
ter is  a  copy,  and  where  it  is  material  to  prove  the 
original,  the  latter  carries  with  it  none  of  the  qual- 
ities of  primary  evidence.2  But  it  will  be  obvious 
on  reflection  that  this  rule  is  not  universal.  Where 
it  is  material  to  prove  the  contents  of  the  dispatch 
as  delivered,  that  is  to  say,  where  it  is  material  to 
prove  the  contents  of  the  copy, — it  is  not  perceived 
on  what  principle  this  is  proved  by  proving  the 
contents   of  the   original,  for  non  constat   that  the 

1  Anheuser-Busch  Brewing  Co.  v.  Hutmacher  (111.),  4  L.  R.  A.  575; 
S.  C,  21  N.  E.  Rep.  62G. 

2  Matteson  v.  Noyes,  25  111.  591;  Smith  v.  Eastern,  54  Md.  138.  See  also 
Howley  v.  Whipple,  48  X.  H.  487;  United  States  v.  Babcock,3  Dill.  (U. 
S.)  567;  Barons  v.  Brown,  25  Kan.  410;  National  Bank  v.  National 
Bank,  7  W.  Va.  544;  Kinghorne  v.  Montreal  Tel.  Co.,  18  Up.  Can.  Q. 
B.  60. 


THEIR    PRODUCTION,   ADMISSIBILITY,   ETC.  459 

copy  may  not  have  deviated  from  the  original.  It 
has  been  well  observed :  "There  is  some  difficulty 
in  determining  whether  the  message  delivered  to 
the  telegraph  office,  or  that  which  is  delivered  to 
the  person  to  whom  it  may  be  addressed,  at  the 
point  of  destination,  is  to  be  regarded  as  the  orig- 
inal. Perhaps  under  some  circumstances  the  one 
or  the  other  may  be  considered  the  original."1  Al- 
though it  may  not  be  ordinarily  admissible  to  prove 
the  contents  of  the  dispatch  as  delivered  to  the 
•company,  yet  the  view  has  been  taken  that  this 
may  be  dispensed  with,  and  that  evidence  of  the 
dispatch,  as  delivered  by  the  transmitting  company, 
may  be  received,  where  the  original  dispatch  and 
the  office  from  which  it  was  sent  are  beyond  the  juris* 
diction  of  the  court.2 

§  498.  Proof  of  Authenticity. — But  it  should  also 
be  borne  in  mind  that  such  messages,  even  when 
admissible  in  evidence,  stand  on  the  footing  of  mere 
private  writings:  they  do  not,  like  public  records, 
official  acts  under  the  seals  of  sovereign  States,  of 
which  the  courts  take  judicial  notice,  prove  them- 
selves. Evidence  must  in  all  cases  be  given  of  their 
authenticity.  When,  therefore,  a  paper  was  offered 
in  evidence,  purporting  to  contain  a  dispatch  re- 
ceived at  a  telegraph  office,  and  no  proof  was  made 
that  it  was  in  the  handwriting  of  any  person  em- 
ployed in  the  telegraph  office  at  the  time  when  it 
purported  to  have  been  received,  and  no  other 
proof  of  its   authenticity    was  given,  it    was   held 


1  Brickell,  C.  J.,  in  Whilden    v.  Merchants',  etc.   Bank,  64   Ala.   1 ; 
S.  C,  38  Am.  Rep.  1,  4. 

2  Ibid. 


460  TELEGRAPHIC    DISPATCHES    AS    EVIDENCE. 

that  it  was  inadmissible  as  evidence.1  The 
Court  of  Appeals  of  Maryland  have  said:  "Ordi- 
narily, the  usual  course  is  to  show  the  delivery  of 
the  original  message  of  the~  party  sought  to  be 
charged,  at  the  office  from  which  it  is  to  be  tele- 
graphed, and  then  show  that  it  Avas  transmitted  and 
delivered  at  the  place  of  its  destination.  But  even 
where  the  original  is  produced,  its  authenticity  must 
be  established,  and  this  either  by  proof  of  the  hand- 
writing or  by  other  proof  establishing  its  genuine- 
ness. The  destruction  of  all  the  messages  sent  from 
the  office  on  the  day  named,  is  sufficient  foundation 
for  the  admissibility  of  secondary  evidence.  But 
this  secondary  evidence  can  only  be  admitted  upon 
proof  that  the  copy  offered  is  a  correct  transcript  of 
a  message  actually  authorized  by  the  party  sought 
to  be  affected  by  its  contents.'  2 

§  499.  Presumption  that  the  Message  as  Deliv- 
ered to  the  Company  was  Delivered  to  the  Person  Ad- 
dressed.— There  is  judicial  authority  for  the  proposi- 
tion that,  where  the  delivery  of  a  message  to  a  tele- 
graph company  for  transmission  is  proved,  it  is  pre- 
sumed that  it  was  delivered  to  the  person  to  whom 
it  was  addressed,  in  the  absence  of  evidence  to  the 
contrary.3  This  rule  of  evidence,  which  applies  to 
letters  properly  sealed,  addressed  and  deposited  in 
the  United  States  mail  for  transmission,  cannot,  it 
is  believed,  be  safely  extended  to  telegraph  compa- 

1  Richie  v.  Bass,  15  La.  An.  668. 

2  Smith  v.  Easton,  54  Md.  138.  See  also  Howley  v.  Whipple,  48  N.  H. 
487;  United  States  v.  Babcock,  3  Dill.  (U.  S.)  567;  Abb.  Tr.  Ev.  290. 

3  Oregon,  etc.  R.  Co.  v.  Otis,  17  N.  Y.  Week.  Dig.  352;  s.  C,  Memo- 
randum, 30  Hun  (N.  Y.),  382;  Com.  v.  Jeffries,  7  Allen  (Mass.),  548; 
s.  c,  83  Am  Dec.  712,  716.  See  also  to  the  rule  relating  to  letters  depos- 
ited in  the  post-office,  1  Greenl.  Ev..  §  40,  and  cases  cited.  Dana  v. 
Kemble,  19  Pick.  (Mass.)  112. 


THEIR    PRODUCTION,   ADMISSIBILITY,   ETC.  461 

nies;  for,  although  messages  delivered  to  such  com- 
panies are  usually  delivered  as  received  by  the  com- 
pany, instances  of  non-delivery,  or  of  incorrect 
transmission  are  so  frequent  that  it  would  be  ex- 
tremely unsafe  to  extend  the  presumption  to  such 
an  agency. 

§  500.  illustration. — On  the  trial  of  an  indict- 
ment for  obtaining  goods  under  false  pretenses,  ob- 
jection was  taken  to  the  competency  of  certain  tele- 
graphic messages  which  were  shown  to  be  in  the 
handwriting  of  the  defendant,  and  which  were  of- 
fered in  evidence  by  the  commonwealth  as  tending 
to  prove  communications  made  by  the  defendant  to 
parties  in  New  York  to  whom  they  were  addressed. 
It  was  ruled  that,  inasmuch  as  these  papers  were 
entirely  competent  as  admissions  by  the  defendant, 
it  was  not  material  to  show  that  their  contents  were 
made  known  to  the  persons  to  whom  they  were  sent, 
and  that  the  rights  of  the  defendant  were  not  prej- 
udiced by  the  fact  that  the  jury  were  left  to  infer 
that  they  had  actually  reached  their  destination. 
But,  as  it  was  affirmatively  proved  that  all  these 
messages  were  received  by  the  operators  at  the  tele- 
graph office  where  they  had  been  delivered  for  trans- 
mission, and  that  they  were  by  them  duly  trans- 
mitted over  the  wires,  directly  to  the  parties  to 
whom  they  were  addressed, — it  was  held  that  the 
•case  came  within  the  principle  on  which  proof  of 
letters,  deposited  in  the  post-office  and  duly  di- 
rected, is  admitted  as  evidence  to  show  that  they 
reached  their  destination  and  were  received  by  the 
persons  to  whom  they  were  addressed.1 

1  Com.  Jeffries,  7  Allen  (Muss.),  548;  s.  c,  83  Am.  Dec.  712.  71G. 


462  TELEGRAPHIC    DISPATCHES    AS    EVIDENCE. 

6    501.      Delivery  not   Proved  by   Producing-   Reply. 

— The  fact  that  a  telegraphic  message  was  delivered 
to  a  man  on  a  certain  day  at  a  distant  place,  is  not 
proved  by  producing  what  purports  to  be  a  tele- 
graphic reply  signed  by  him,  received  at  the  send- 
ing office,  very  soon  afterwards  on  the  same  day, 
and  addressed  to  the  sender  of  the  former  dispatch; 
for,  although  men  in  the  ordinary  affairs  of  life  con- 
stantly act  upon  such  evidence,  yet  the  only  way  to 
prove  such  a  message  in  a  court  of  law  is  to  sum- 
mon both  the  intervening  agents  or  bearers  of  the 
message, — that  is,  the  agent  of  the  telegraph  com- 
pany receiving  and  transmitting  the  message,  and 
the  agent  at  the  end  of  the  transit,  receiving  and 
delivering  it, — and  by  them  proving  its  transmission 
and  delivery.  It  is  reasoned  that  anything  short  of 
this  would  be  to  rely  upon  hearsay  evidence  of  the 
loosest  character.1 

§  502.  Under  what  Circumstances  the  Copy  is 
Admissible. — Having  determined,  as  between  the 
dispatch  which  was  sent  and  that  which  was  received, 
which  is  the  original  and  which  the  copy,  the  next 
inquiry  will  often  be,  under  what  circumstances  the 
copy  is  admissible  in  evidence.  The  well-known 
rule  which  requires  the  best  evidence  demands  the 
production  of  the  original  when  that  can  be  had, 
and  excuses  it  when  it  cannot,  and  admits  the  copy 
in  its  stead,  but  of  course,  only  on  proof  that  it  is 
a  copy.  Telegraph  companies  cannot  preserve  the 
originals  of  messages  forever:  they  cannot  furnish 
room  for  the  vast  accumulation.  They,  therefore, 
have  rules  for  keeping  them  a  certain  length  of  time 
and  then  destroying  them.     But  it  is  not  necessary 

1  Howley  v.  Whipple,  48  N.  H.487. 


THEIR    PRODUCTION,   ADMISSIBILITY,  ETC.  463 

to  prove  the  existence  of  such  a  rule  by  introducing 
it  in  evidence  as  a  document  in  order  to  show  that 
the  original  of  the  dispatch  has  been  lost,  so  as  to 
let  in  a  copy  as  evidence,  there  being  no  evidence 
that  the  rule  is  in  writing  or  in  print.1  In  every 
such  case  there  must  be  satisfactory  evidence  of  the 
loss  of  the  original  in  order  to  let  in  the  copy  ;  and 
this,  though  a  question  of  fact,  is  always  to  be  de- 
cided by  the  judge,  and  is  not  to  be  submitted  to 
the  jury.2 

§  503.  illustrations. — This  is  well  illustrated  by  a 
case  where  the  plaintiff  claimed  credit  for  a  certain 
payment  sent  by  express,  in  obedience  to  a  telegram 
from  defendant.  He  introduced  employees  of  the 
telegraph  office  to  show  that  the  original  telegram 
could  not  be  found,  and  that  it  was  the  rule  of  the 
office  not  to  preserve  such  papers  after  six  months, 
which  in  the  particular  case  had  elapsed.  He  then 
introduced  evidence  that  the  copy  of  the  telegram 
in  evidence  was  in  the  handwriting  of  a  former  em- 
ployee of  the  office,  and  that  the  money  had  been 
sent  by  express,  and  received  by  the  defendant.  The 
court  held  that  this  was  a  sufficient  foundation  for 
the  use  of  the  copy  of .  the  telegram,  without  intro- 
ducing the  rule  of  the  office,  there  being  no  proof 
that  it  was  in  print  or  writing.3  In  an  action  by 
the  assignee  of  a  landlord  against  a  tenant,  who 
has  held  over  after  the  expiration  of  his  year,  in 
which  the  plaintiff  claims  that  the  tenant  has  become 
liable  to  pay  a  certain  increased  rent,  the  copy  of  a 
telegram  received    by  the  tenant,  showing  upon  its 


1  Riordan  v.  Guggerty,  74  Iowa,  088;   s.  c,  39  N.  W.  Rep.  107 

2  Thomp.  Trials,  §  804. 

r)  Riordan  v.  Guggerty,  74  Iowa,  688;  8.  c,  39  N.  W.  Rep.  107. 


464         TELEGRAPHIC    DISPATCHES    AS    EVIDENCE. 

face  that  it  was  in  response  to  a  letter  written  by 
the  tenant's  attorney  to  the  landlord,  asking  for 
terms  of  a  renewal,  and  confirmed  by  a  subsequent 
letter  of  the  landlord  containing  the  same  proposi- 
tions, has  been  held  admissible,  without  producing 
the  original.1 

§  504.  When  Oral  Evidence  Admissible.  —  The 
rule  that  secondary  evidence  of  the  contents  of  a 
writing  is  inadmissible,  unless  the  absence  of  the 
original  is  accounted  for,  is,  of  course,  applicable  to 
telegrams 2  and  to  cablegrams.3  Oral  evidence  of  the 
contents  of  a  telegram  cannot,  of  course,  be  received 
until  a  sufficient  excuse  is  shown  for  the  non-pro- 
duction of  the  original.4  But  this  rule  cannot  be 
invoked  where  it  does  not  appear  that  the  telegrams 
were  in  writing,5  which  is  not  necessarily  the  case.6 
It  has  been  held,  in  an  action  against  the  telegraph 
company  itself,  that  the  delivery  of  a  cablegram  to 
the  addressee,  by  the  company,  as  coming  from 
"Victoria,"  with  proof  that  that  was  the  cipher 
name  of  the  addressee's  correspondent  at  the  place 
from  which  the  message  was  sent,  is  prima  facie 
sufficient  to  show  that  it  was  sent  by  such  corre- 
spondent; and  where  the  message  delivered  to  the 
addressee  has  been  lost  or  destroyed,  and  that  de- 
livered for  transmission  is  without  the  jurisdiction 

1  Thorp  v.  Philbin,  2  X.  Y.  St.  Rep.  732. 

2  McCormick  v.  Joseph,  83  Ala.  401;  s.  c,  3  South.  Rep.  796. 

3  Wilson  v.  Holt,  83  Ala.  528;  s.  c,  3  Am.  St. Rep.  768;  3  South.  Rep. 
32. 

4  McCormick  v.  Joseph,  supra.    . 

5Terre  Haute,  etc.  R.  Co.  v.  Stockwell,  118  Ind.  98;  s.  C,  20  X.  E. 
Rep.  650. 

6  See,  for  a  case  where  all  the  message  is  oral,  Western  Union  Tel. 
<  !o.  v.  Stevenson,  128  Pa.  St.  442;  s.  C,  5  L.  R.  A.  515;  24  W.  N.  C. 
4!>7:  18  Atl.  Rep.  441. 


THEIR    PRODUCTION,   ADMISSIBILITY,   ETC.  465 

of  the  court,  secondary  evidence  of  their  contents 
is  admissible,  whichever  be  regarded  as  the  origi- 
nal.1 

§  505.  Illustration:  Secondary  Evidence  Admis- 
sible.— In  an  action  for  goods  sold  and  delivered, 
the  plaintiff's  agent  testified  that  he  had  received 
an  order  from  the  defendant  by  telegram,  which* 
was  replied  to  by  letter,  and  a  person  sent  to  take- 
necessary  measurements.  The  telegraph  company- 
had  destroyed  all  memoranda  relating  to  telegrams 
of  the  date  of  the  transaction.  The  plaintiff  had' 
not  preserved  the  defendant's  original  telegram,  nor 
any  copy  of  the  letter  in  reply;  but  the  witness  who- 
took  the  measurements  testified  that  he  saw  and- 
conversed  with  the  defendant  about  the  order.  Trie- 
court  held  that  secondary  evidence  of  the  contents 
of  the  telegram  was  admissible.2     / 

§  506.  When  Parol  Evidence  of  Message  Compe- 
tent without  Notice  to  Produce. — In  Texas,  in  an 
action  for  damages  for  the  non-delivery  of  a  tele- 
graphic message,  parol  evidence  of  the  contents  of 
the  message  is  competent,  without  notice  to  produce- 
the  original.  The  court  say  that  there  is  a  recognized 
exception  to  the  rule  which  requires  notice  to  be- 
given  to  produce  the  original  instrument  before  sec- 
ondary evidence  can  be  resorted  to,  which  arises 
when,  from  the  very  nature  and  character  of  the 
action,  the  defendant  must  know  that  he  is  charged 
with  the  possession  of  the  instrument.3 

1  Western  Union  Tel.  Co.  v.  Way,  83  Ala.  542;  s.  c,  4  South.  Rep.  844, 
For  evidence  held  not  sufficient  to  justify  a  jury  in  finding  that  a  mes- 
sage blank  was  torn,  see  Kiley  v.  Western  Union  Tel.  Co.,  109  N.  Y.  231 ; 
s.  c,  16  N.  E.  Rep.  75. 

2  Flint  v.  Kennedy,  33  Fed.  Rep.  S20. 

3  Reliance  Lumber  Co.  v.  Western  Union  Tel.  Co.,  58    IVx.  3!)4;  s.  c 

(30) 


466  TELEGRAPHIC    DISPATCHES    AS    EVIDENCE 

§  507.  Has  Evidentiary  Effect  of  a  Letter. — Gen- 
erally speaking,  a  telegram,  if  properly  identified, 
will  have  the  evidentiary  effect  of  a  letter.1 

§   508.      Notice  of  Injunction  by  Telegram. — It  has 

been  held  in  Great  Britain  that  sufficient  notice  of 
the  granting  of  an  injunction  may  be  given  by  tele- 
gram.2 In  one  such  case  a  sheriff's  officer  and  an 
auctioneer  proceeded  with  the  sale  of  the  property 
of  a  trader,  seized  under  a  fi.  fa.,  after  they  had  re- 
ceived notice  by  a  letter  from  the  debtor's  solicitor, 
that  he  had  filed  a  liquidation  petition,  and  had 
also  received  notice,  by  telegram  that  the  Court  of 
Bankruptcy  had  made  an  order  restraining  further 
proceedings  under  that  writ.  It  was  held  that  the 
plaintiff's  officer  and  the  auctioneer  had  been  guilty 
of  contempt  of  court,  and  that  they  must  pay  the 
costs  of  a  motion  to  commit  them.3  But  if  it  is 
sought  to  commit  for  contempt  a  person,  who,  after 
receiving  such  a  notice,  disregards  it,  the  court  must 
-decide  upon  the  particular  facts,  whether  he  had  in 
fact  notice  of  the  injunction,  and  it  is  the  duty  of 
those  who  ask  for  the  committal  to  prove  this  be- 
yond a  reasonable  doubt.4  It  was  held  in  such  a 
case  that  the  person  violating  the  injunction  will  not 
■be  committed  for  contempt  if  he  swears  that,  though 
lie  had  received  notice  of  it  by  telegram,  he  bona 
fide  believed  that  no  injunction  had  been  granted, 

44  Am.  Rep.  620.  As  to  this  exception  to  the  rule  which  requires  the 
production  of  the  instrument  without  notice,  see  Hamilton  v.  Rice,  15 
Tex.  382,  3S5;  Dean  v.  Borden,  15  Tex.  298;  1  Greenl.  Ev.,  §  561. 

1  Coupland  v.  Arrowsmith,  18  L.  T.  (X.  S.)  755,  semble. 

*  Be  Bryant,  L.  R.  4  Ch.  D.  98 ;  s.  c,  35  L.  T.  (BT/S.)  489 ;  25  W.  R.  230. 

a  Ibid. 

4  Exp.  Langley,  Exp.  Smith,  Be  Bishop,  13  Ch.  Div.  110;  s.  c,  49  L 
-T.  Bky.  1 ;  41  L.  T.  388;  28  W.  R.  174. 


THEIR    PRODUCTION,   ADMISSIBILITY,   ETC.  467 

and  the  circumstances  show  that  such  a  belief  was 
not  unreasonable.1 

§  509.  English  Practice:  How  Such  Notice  Com- 
municated hy  Telegram  and  Duty  of  Sheriff's  Officer 
Respecting-  Same. — It  has  also  been  held  in  that 
country  that  a  London  solicitor,  who  obtains  an 
order  from  the  Court  of  Bankruptcy  in  London,  re- 
straining a  sale  under  an  execution  in  the  country, 
instead  of  telegraphing  the  order  to  the  sheriff's 
officer,  ought  to  telegraph  it  to  a  solicitor  at  the 
place,  as  his  agent,  asking  him  to  give  notice  of  it  to 
the  person  affected.2  Moreover,  in  that  country,  it  is 
the  duty  of  a  sheriff's  officer  who  receives  notice  by 
telegram,  purporting  to  be  sent  by  solicitors  in  Lon- 
don, of  an  injunction  being  granted  by  the  Court  of 
Bankruptcy,  to  restrain  a  sale  in  the  country  under 
an  execution,  to  telegraph  to  the  Court  of  Bank- 
rupcy,  or  to  the  London  agents  of  the  sheriff,  to 
ascertain  whether  an  induction  has  really  been 
granted.3  This,  however,  is  not  the  duty  of  the 
auctioneer  who  is  conducting  the  sale ;  he  is  only 
bound  to  communicate  with  the  sheriff's  officer  who 
has  instructed  him  to  sell.4  Moreover,  a  sheriff's 
officer  who  is  not  himself  present  at  the  sale,  and 
who  has  no  actual  notice  of  the  injunction,  is  not 
responsible  for  the  act  of  his  deputy  who  allows  the 
sale  to  be  continued  after  receiving  notice  by  tele- 
gram.5 

1  Exp.  Langley,   Exp.  Smith.  Be  Bishop,  13  Ch.  Div.  110;  s.  c,  4!)  I.. 
J.  Bky.  1 ;  41  L.  T.  (N.  S.)  388;  28  W.  R.  174. 

2  Ibid. 

3  Ibid. 

4  Ibid. 

5  Ibid. 


468  MISCELLANEOUS    MATTERS. 


CHAPTER   XVII. 

MISCELLANEOUS  MATTERS. 

Section. 

513.  Purpose  of  This  Chapter. 

514.  Real  Property. 

515.  Wires  when  Construed  as  Personalty. 

516.  Electric  Light  Plant  the  Subject  of  a  Material-man's  Lien. 

517.  Injunction  against  the  Use  of  Telegraph  Ciphers. 

518.  Municipal  Taxation  of  Telegraph  Companies  Outside  of  City 

Limits. 

519.  Municipal  Tax  not  Exempting  Government  Business  Void. 

520.  What  Municipal  and  State  Taxation  Interferes  with  Interstate 

Commerce. 

521.  Leasing  Line  and  Breach  of  Contract  for  Continuous  Business. 

§  513.  Purpose  of  This  Chapter. — In  the  prepara- 
tion of  this  volume  two  or  three  matters  which 
seemed  to  belong  to  such  a  work  escaped  classifica- 
tion; two  or  three  decisions  eluded  the  search  of  the 
author;  and  two  or  three  others  appeared  after  the 
chapters  in  which  they  otherwise  should  have  been 
classified  were  put  in  type.  They  are,  therefore, 
gathered  together  in  this  chapter. 

§  514.  Real  Property. — Electric  light  poles,  wires 
and  lamps  have  been  held  to  be  real  property.1 

§  515.  Wires  when  Construed  as  Personalty. — It 
has  been  held  that  telegraph  wires  fixed  to  poles  do 

1  Keating  Implement,  etc.  Co.  v.  Marshall   Electric,  etc.  Co.,  74  Tex. 
605;  s.  c,  12  S.  W.  Rep.  489. 


MISCELLANEOUS    MATTERS.  469 

not  lose  their  character  as  personalty  and  become  a 
part  of  the  realty  covered  by  a  previously  existing 
mortgage,  where  it  is  the  intention  and  agreement 
of  the  parties  putting  up  the  wires  that  they  shall 
remain  personalty  subject  to  be  removed.1 

§  516.  Electric  Light  Plant  the  Subject  of  a  Mate- 
rial-man's Lien. — An  electric  light  plant  furnished 
for  a  steamboat,  for  the  creation  and  distribution  of 
electric  lights,  comes  within  Code  Miss.  1880,  § 
1378,  giving  a  lien  on  the  boat  for  "material  fur- 
nished about  the  erection  and  construction,  altera- 
tion or  repairs.2  The  right  of  lien  in  such  cases 
rests  on  the  terms  of  the  particular  statute;  but  all 
such  statutes  proceed  upon  the  idea  of  giving  a  lien 
to  the  mechanic  who  has  done  labor,  or  the  mate- 
rial-man who  has  furnished  materials,  which  enter 
into  and  become  a  part  of  the  permanent  structure. 

§  517.  Injunction  Against  the  Use  of  Telegraph 
Ciphers. — A  telegram  company  in  London  made  an 
arrangement  with  the  defendants,  being  two  indi- 
viduals in  Australia,  for  the  transmission  of  mes- 
sages, in  which  certain  words  were  used  as  short 
expressions  of  the  names  and  addresses  of  the  prin- 
cipal customers;  and  the  defendants  were  described 
as  agents  of  the  telegram  company.  In  a  little 
time  the  parties  quarreled,  and  one  of  the  defend- 
ants came  to  England  to  carry  on  an  independent 
telegram  business  with  his  partner  in  Australia,  and 
sent  circulars  to  the  customers  of  the  telegram  com- 
pany, mentioning  that  he  had   their  ciphers.     On 

1  Boston  Safe  Deposit,  etc.  Co.'v.  Bankers',  etc.  Tel.  Co.,  36  Fed.  Rep. 
288. 

2  Mulholland  v.  Thomson-Houston  Electric  Light  Co.,  66  Miss.;;:?'.); 
S.  C,  G  South.  Rep.  211. 


470  MISCELLANEOUS    MATTERS. 

motion  to  restrain  him  from  using  the  ciphers,  it 
was  held  that  there  was  nothing  confidential  in  the 
ciphers,  and  that  he  was  entitled  to  use  them.1 

§  518.  Municipal  Taxation  of  Telegraph  Compa- 
nies Outside  of  City  Limits. — It  was  held  by  the  Court 
of  Common  Pleas  of  Charleston,  South  Carolina,  in  a 
learned  opinion  by  Judge  Izlar,  that  an  act  of  the 
legislature  authorizing  a  municipal  corporation  to 
require  pa}7ment  of  a  license  tax  by  any  person  en- 
gaged in  any  calling,  business  or  profession  "in 
whole  or  in  part  within  the  city,"  does  not  author- 
ize an  ordinance  requiring  a  telegraph  company 
having  an  agency  in  the  city  to  pay  a  license  tax 
for  "business  done  within  the  State,  and  not  includ- 
ing that  done  without  the  State."  Such  ordinance 
is  ultra  vires  and  void,  as  it  assumes  to  tax  business 
done  outside  the  limits  of  the  city.2 

§  519.  Municipal  Tax  not  Exempting  Govern- 
ment Business  Void. — The  same  learned  judge,  in 
the  same  case,  holds  that  a  telegraph  company  which 
has  accepted  the  restrictions  and  obligations  of  the 
Act  of  Congress  of  July  24,  1866, 3  and  is  engaged 
in  the  transmission  of  messages  as  required  by  said 
act  for  the  Federal  government,  is  a  government 
agent,  and  a  statute  of  the  State  or  municipal  ordi- 
nance imposing  a  license  tax  on  its  business,  which 
does  not  exempt  government  business,  is  in  contra- 
vention of  the  Act  of  Congress  and  in  violation  of 
that  provision  of  the  Federal  Constitution,4  which 
confers  upon  Congress  the  power  to  establish  post- 

1  Heuter's  Telegram  Company  v.  Byron,  43  L.  J.  Chanc.  661. 

2  Charleston  v.  Pos  tal  Telegraph  Co.,  9  Rail.  &  Corp.  L.  J.  129. 

3  Ante,  §  2. 
"Art.  1,  §  8. 


MISCELLANEOUS    MATTERS.  471 

offices  and  post-roads.1  If  there  could  be  any  doubt 
as  to  the  propriety  of  this  conclusion,  a  reading  of 
the  opinion  delivered  by  the  learned  judge  would 
dispel  it. 

§  520.  What  Municipal  and  State  Taxation  In- 
terferes with  Interstate  Commerce. — Since  the  first 
chapter jDf  this  work  was  put  in  type,  two  decisions 
have  come  to  the  notice  of  the  writer  on  this  sub- 
ject. One  of  them,  rendered  by  the  Circuit  Court 
of  the  United  States  for  the  Eastern  District  of 
Pennsylvania,  holds  that  the  city  of  Philadelphia 
is  not  authorized  to  tax  a  telegraph  company  occu- 
pying its  streets,  and  could  not  even,  if  authorized r 
tax  a  company  engaged  in  interstate  commerce.2 
The  other,  rendered  by  the  Supreme  Court  of  Penn- 
sylvania3 (in  a  per  curiam  opinion,  affirming  the 
opinion  of  Judge  Trunkey  in  the  court  below),  holds 
that  a  State  tax  on  the  gross  receipts  of  a  telegraph- 
company  from  messages  between  points  within  and 
points  outside  of  the  State,  and  from  messages  be- 
tween points  in  other  States,  which  pass  over  lines 
partly  within  the  State,  is  not  in  conflict  with  the- 
interstate  commerce  clauses  of  the  Federal  constitu- 
tion, nor  with  the  Act  of  Congress  of  July  24,  1866r 
already  set  out.4  One  of  the  departments  of  the 
Supreme  Court  of  New  York  is  also  reported  to 
have  held  that  the  fact  that  the  Act  of  Congress 
already  set  out,5  has  made  it  possible  for  a  telegraph 


1  Charleston  v.  Postal  Telegraph  Co.,  9  Rail.  &  Corp.  L.  J.  129. 

2  Philadelphia  v.  Western   Union  Tel.  Co.,  40  Fed.  Rep.  015;  s.  c,  2 
Inters.  Com.  Rep.  728. 

3  Western  Union  Tel.  Co.  v.  Commonwealth,  110  Pa.  St.  405;  8.  C,  20> 
Atl.  Rep.  6  (Anno  1885) . 

4  Ante,  §12. 
*  Ante,  §  2. 


472  MISCELLANEOUS    MATTERS. 

■company,  created  under  general  State  laws,  to  es- 
tablish business  relations  with  the  Federal  govern- 
ment will  not,  without  proof  that  such  relations 
have  been  formed,  justify  a  legal  presumption  that 
the  line  extends  beyond  the  limits  of  the  State,  and 
that  the  company  has  assumed  such  relations  with 
the  United  States  as  to  deprive  the  State  of  the 
right  to  tax  its  property  within  the  State.1  But,  as 
already  seen,2  telegraph  companies  which  have  ac- 
cepted the  provisions  of  the  Act  of  Congress  can- 
not be  taxed  by  a  State  for  any  messages  or  receipts 
-arising  from  messages  from  points  within  the  State 
to  points  without,  or  from  points  without  the  State 
to  points  within;  but  such  taxes  may  be  levied  upon 
all  messages  carried  and  delivered  exclusively  within 
the  State.* 

§  521.  Leasing-  Line  and  Breach  of  Contract  for 
Continuous  Business. — A  contract  between  a  tele- 
graph company  and  an  individual,  by  which  he 
agrees  to  provide  an  office  and  to  transact  business 
for  that  company  exclusively,  and  the  company 
agrees  to  furnish  instruments  and  other  office  sup- 
plies, and  not  to  open  another  office  in  the  place 
during  the  continuance  of  the  contract,  which,  it  is 
expressly  agreed,  shall  continue  for  ten  years,  with 
a  provision  that  either  party  may  break  the  contract 
by  paying  in  cash  a  sum  equal  to  the  amount  that 
would  have  been  received  by  the  agent  if  it  had 
been  carried  out,  to   be  estimated  according  to  his 

1  Western  Union  Tel.  Co.  v.  Tierney,  57  Hun  (ST.  Y.),  357;  s.  c,  32 
X.  Y.  St.  Rep.  605;.  10  N.  Y.  Supp.  940;  Same  v.  Same,  32  X.  Y.  St. 
Rep.  60S;  10  N.  Y.  Supp.  94S. 

2  Ante,  §  6. 

3  Western  Union  Tel.  Co.  v.  Alabama  State  Board  of  Assessment,  132 
U.  S.  472;  s.  c,  33  L.  ed.  409;  30  Am.  &  Eng.  Corp  Cas.  583;  2  Inters. 
Com.  Rep.  726;  10  Sup.  Ct.  Rep.  161. 


MISCELLANEOUS    MATTERS.  473 

average  yearly  cash  receipts,  is  broken  by  the  com- 
pany when  it  has  leased  its  line,  and  when  the  com- 
pany which  has  acquired  the  lease  discontinues 
business  at  that  office.1 

1  Tufts  v.  Atlantic  Tel.  Co.,  151  Mass.  269;  s.  C,  23  N.  E.  Rep.  844. 


INDEX. 


ABBREVIATIONS, 

abbreviations  commonly  used  in  trade  affect  company  witb  notice, 
§367. 

ABUTTING  OWNERS, 

right  of,  to  enjoin  use  of  street  by  electrical  railway  company,  §  34. 
by  telegraph  company,  §  34,  p.  44,  note  1. 
ACQUIESCENCE, 

land-owner  may  release  damages   for  appropriation  by  his  ac- 
quiescence, §  24. 
ACTION, 

whether  ex  contractu  or  ex  delicto  against  telegraph  company,  §  146. 
commencement  of,  equivalent  to  a  notice  in  writing  of  a  claim  for 

damages,  §  256. 
by  addressee  for  non-delivery,  §  426. 

ACTION  OVER, 

by  sender  of  message  for  damages  sustained  by  the  receiver  and  re- 
covered from  company,  §  437. 
ADDRESSEE, 

of  message,  not  bound  by  stipulation  as  to  time  for  presenting 

claim  for  damages,  §  251. 
action  by,  for  non- delivery,  §  426. 
must  sue  in  tort,  §448. 

when  may  sue  for  mistake,  delay,  non-delivery,  etc.,  §  427  et  seq. 
See  also  Parties. 
ADMISSIONS, 

contents  of  telegrams,  when  admissible  on  the  footing  of  admis- 
sions, §  500. 
AFFIRMATIVE  ACTION, 

loss  of  profits  in  case  of  errors  in  transmitting  messages  ordering 
affirmative  action,  §  339. 


476  INDEX. 

AGENCY, 

agent  of  telegraph  company  cannot  delegate  authority,  etc.,  §  146. 
misprision  of  agent  of  telegraph  company  who  is  also  agent  of  an 

express  company,  §  146. 
telegraph   company  not  liable  for  remote  frauds  following  negli- 
gence of  its  agents,  §  148. 
telegraph  company  not  bound  for  mistake  of  agent  in  correcting 

erroneous  message,  §  152. 
when  oral  promise  of  agent  not  a  waiver  of  written  notice  of  claim 

for  damages,  §  253. 
notice  of  claim  for  damages  must  be  delivered  to  an  authorized 

agent,  §  254. 
mere  operator  no  authority  to  receive  notice  of  claim  for  damages, 

§  254. 
circumstances  under  which  clerk  has  such  authority,  §  254. 
circumstances  under  which  claim  properly  made  to  attorney,  §  254. 
properly  made  to  agent  on  duty  at  a  station,  §  254. 
no  mutual  agency  between  connecting  lines  of  telegraph,  §  262. 
implied  authority  of  hotel  clerk  to  receive  a  dispatch  for  a  guest, 

§2S9. 
English  rule  that  addressee  may  sue  where  sender  is  his  agent, 

§§  425,  433. 
when  sender  of  message  is  agent  of  a  third  person  his  principal 

may  sue,  §  431. 
although  may  be  an  undisclosed  principal,  §  432. 
so,  where  the  sender  is  the  agent  of  the  addressee,  §§  425,  433. 
broker  transmitting  message  in  his  own  name  for  principal  and 

suing  in  his  own  name,  §  434. 
importance  of  telegraph  company  having  notice  in  case  of  agency, 

§436. 
effect   of  stipulation   declaring  connecting  line  the  agent  of  the 

sender,  §  442. 
view  that  telegraph  company  is  not  agent  of  sender  of  messages, 

§§  4S0.  481. 
weight  of  American  doctrine  to  the  contrary,  §  482. 
ratification  of  such  agency,  §  483. 
ratification  of  agency  of  sender  of  telegraph  message,  §  483. 

ALLEGATA  ET  PROBATA, 

servant  averring  one  kind  of  negligence  and  recovering  on  another, 

§94. 
pleading  one  kind  of  damages  and  recovering  on  another,  §  404. 

what  plaintiff  must  aver  and  prove  in  action  against  telegraph  com- 
pany, §  449. 

allegation  of  delivery  of  message  for  transmission  in  March,  and 
proof  that  it  was  in  -January,  §  455. 
ALLEYS.    See  Highways. 


INDEX.  477 

AMERICAN  RULE, 

giving  right  of  action  to  the  addressee  of  a  telegraphic  message, 
§  426  et  seq.    See  Parties. 
ARKANSAS, 

statute  of,  giving  penalty  against  telegraph  company  for  discrim- 
ination does  not  include  negligence,  §  163. 
ASSOCIATED  PRESS, 

transmission  of  libelous  message  to,  is  a  publication,  §  150. 
liable  for  transmitting  libelous  message,  §  150. 
ASSUMPSIT, 

theory  that  the  addressee  of  a  message  cannot  sue  in  assumpsit, 
§430. 

ATTACHMENT, 

damages  against  telegraph  companies  for  loss  of  opportunity  to 
save  debt  by  attachment,  §  329. 
ATTORNEY, 

authority  of,  to  receive  notice  of  claim  for  damages,  §  254. 
AUTHENTICITY, 

of  telegraph  messages,  how  proved,  §  498. 
BAD  FAITH, 

statutes  giving  penalties  against  telegraph  companies  for  bad  faith 

in  discharging  their  public  duty,  §  157  et  seq. 
bad  faith  not  excused  by  stipulation  for  repeating  telegraph  mes- 
sage, §  223. 

BAD  WEATHER, 

delay  in  transmitting  message  caused  by  changing  route  in  conse- 
quence of  bad  weather,  §  304. 
BARGAIN, 

loss  of,  as  an  element  of  damages,  §  343.    See  also  Profits. 
BELL  TELEPHONE, 

history  of  the  patents  of  the  invention  of  Alexander  Graham  Bell, 
§  102. 
BOARD  OF  ELECTRICAL  CONTROL, 

as  to  the  NeAv  York  board  of  electrical  control,  §  51. 
BREAKING, 

of  electrical  wires,  extent  of  danger  to  be  apprehended  from,  §  50, 
p.  66. 
BRIDGES, 

right  of  telegraph  companies  to  extend  their  lines  upon  interstate 
bridges  over  navigable  waters,  §11. 
BROKER, 

loss  by  a  broker  as  an  element  of  damages,  §§  349,  350. 
may  sue  in  his  own  name  where  he  transmits  message  in  his  own 
name  for  his  principal,  §  434. 


478  INDEX. 

"BUCKET  SHOPS," 

telegraph  companies  not  bound  to  furnish  market  quotations  to, 
§  14.".. 
BURDEN  OF  PROOF, 

effect  of  stipulations  in  message  blanks  as  to  repeating  on  the  bur- 
den of  proof,  §§  221,  222. 
whether  shifted  by  a  stipulation  in  telegraph  message  blank  against 

liability,  §  277. 
as  to  free  delivery  limits  of  telegraph  company,  §  282. 
upon  the  plaintiff  to  show  the  amount  of  his  damage,  §  403. 
CABLE, 

telegraph  companies  may  not  obstruct  navigation  by  sub-aqueous 
cable,  §  12. 
CATTLE, 

damages  for  loss  of  weight  of  cattle  pending  delay,  §  344. 
CERTAINTY, 

in  proposition  and  acceptance  to  make  a  contract,  §  479. 
CIPHER  DISPATCHES, 

application  of  rule  in  Hadley  v.  BaxendaJe  to  unintelligible  or  cipher 
dispatches,  §  357  et  seq. 
nominal  damages  only,  recoverable  in  such  cases,  §  358. 
reasons  of  this  rule,  §  359. 
rule  applicable  to  unintelligible    dispatches,  though    not    in 

cipher,  §  360. 
an  English  case  illustrating  the  rule,  §  361. 
a  Canadian  case  in  illustration,  §  362. 
American  cases  in  illustration,  §  363. 
necessity  of  communicating  information  of  the  importance  of  the 

message,  §§  364,  365,  366. 
sufficient  that  the  company  is  put  on  inquiry,  §  365. 
instances  of    dispatches   sufficiently  disclosing  their  importance, 

§§  367,  36S. 
company  bound  to  notice  abbreviations  in  common  use  in  trade, 

§367. 
no  distinction  between  non-delivery  and  mistake  in  delivering  a 

cipher  dispatch,  §  369. 
stipulation  in  message  blanks  as  to  cipher  or  obscure  messages, 

§370. 
cases  which  deny  any  distinction  between  cipher  and  other  dis- 
patches in  respect  of  the  measure  of  damages,  §  372. 
exemplary  damages  for  the  non-delivery  of    cipher  dispatches, 

§373. 
unintelligible  dispatches  subject  to  parol  explanation,  §  374. 
CIPHERS, 

injunction  against  the  use  of  ciphers  employed  in  private  trade 
§517. 


INDEX.  479 

CIRCUMSTANTIAL  EVIDENCE, 

telegraphic  message,  when  a  link  in  circumstantial  chain,  §  492. 
CLAIMS  FOR  DAMAGES, 

stipulations  in  message  blanks  limiting  time  and  manner  of  pre- 
senting claims  for  damages,  §§  245-256. 
such  stipulations,  when  deemed  reasonable,  §§  245,  246. 
limitation  of  sixty  days  not  unreasonable,  §  247. 
validity  of  limitation  of  less  than  sixty  days,  §  24S. 
circumstances  under  which  such  limitation  too  short,  §  249. 
thirty  days'  limitation  with  knowledge  of  loss  sufficient,  §  250. 
whether  stipulation  applicable  to  actions  for  statutory  penal- 
ties, §  251. 
apply  only  in  cases  where  the  message  is  actually  sent,  §  252. 
what  not  a  waiver  of  written  notice,  §  253. 
notice  must  be  delivered  to  an  authorized  agent,  §  254. 
when  the  limitation  begins  to  run,  §  255. 

commencement  of  action  equivalent  to  notice  in  writing,  §  256. 
reasonableness  of  stipulations  in  telegiapb  message  blanks  as  to 
time  and  manner  of  presenting  claims  for  damages,  §§  245-256. 
CLAIM  OF  INDEMNITY, 

evidence  that  claim  of  indemnity  has  been  duly  made  by  telegraph 
company,  §  462. 
parol  evidence  of  the  contents  of  such  claim,  §  463. 
CLERK, 

validity  of  notice  of  claim  for  damages  when  made  to  a  clerk,  §  254. 
COMMISSIONS, 

loss  of,  as  an  element  of  damages,  §§  349,  350. 

loss  on  commissions  of  sales  as  an  element  of  damages.  §  363.    See 
Profits. 
COMMON  CARRIERS, 

telephone  companies  are  not,  §  103. 
telegraph  companies  are  not,  §  137. 

reasons  for  distinguishing  their  liability  from  that  of  common 

carriers,  §  138. 
remote  analogy  to  common  carriers,  §  139. 
exceptional  rule  as  to  conditions  in  bills  of  lading  limiting  liability, 

§210. 
stipulation  in  contracts  of  shipment  as  to  time  for  presenting  claims 

for  damages,  §  246,  note, 
rule  of  liability  in  case  of  loss  of  goods  by  connecting  lines,  §  266. 
of  stipulation  against  liability  upon  burden  of  proof  of  negligence 
§  27!». 
COMMON  CARRIER  OF  NEWS, 

telephone  companies  said  to  be,  §  103. 
COMPLAINT.    See  PLEADING. 


480  INDEX. 

CONDEMNATION  OF  LAND, 

for  telegraph  and  other  electrical  companies,  §§  2,  17-24. 
whether  telegraph  lines  on  highways  an  additional  servitude,  §  18. 
how,  as  to  lines  constructed  on  railroad  company's  right  of 
way,  §  19. 
right  of  railway  company  to  compensation  from  telegraph  com- 
pany in  such  cases,  §  20. 
construction  of  a  statutory  power  to  pass  under  a  railroad,  §  21. 
additional  burdens  on  the  fee  by  electrical  companies,  §  22. 
requisites  of  petition  to  condemn,  §  23. 
release  of  damages  by  acquiescence,  §  24. 

CONDUCTION, 

the  danger  of  conduction  or  leakage  in  electrical  interferences  dis- 
cussed, §  50. 

CONFINEMENT, 

damages  consisting  of  mental  suffering  in  cases  of  failure  to  de- 
liver message  relating  to  females  about  to  be  confined,  §§  389.390, 
391,  392. 

CONNECTICUT, 

statute  of,  committing  regulation  of  electrical  companies  to  munici- 
pal corporations,  §  56. 

statute  of,  authorizing  use  of  roads  and  streets  by  these  companies, 
§59. 

CONNECTING  LINES, 

stipulations  as  to  repeating  release  liability  for  mistakes  of  con- 
necting lines,  §  233. 
but  do  not  exonerate  the  connecting  lines  themselves,  §  234. 
statutory  obligation  to  forward  dispatches  delivered  by  connecting 

lines,  §  261. 
not  liable  for  default  of  connecting  line,  §  262. 

may  stipulate  against  liability  for  defaults  of  connecting  line,  §  263. 
may  become  so  liable  by  contract,  §  264. 

reasonableness  of  particular  regulations  as  to  connecting  lines,  §  265. 
evidence  of  negligence  where  dispatch  received  from  connecting 

line,  §  266. 
illustration :    negligence  of  connecting  line :    change  of  address, 

§  267. 
company  receiving  message  from  connecting  line  cannot  avail  itself 

of  conditions  in  message  blank,  §  268. 
parties  to  actions  in  case  of  refusal  of  connecting  lines  to  forward 

dispatches,  §  442. 
when  the  leasing  of  a  line  is  a  breach  of  a  contract  for  continuous 

business,  §  521. 

CONSEQUENTLY  DAMAGES, 

must  be  alleged  and  proved,  §  402. 


INDEX.  481 

CONSTITUTIONAL  LAW, 

statutes  requiring  telegraph  wires  to  be  put  under  ground  not  un- 
constitutional, §  32. 
telephone  companies  subject  to  public  regulation,  §  104. 

although  using  United  States  patent,  §  105.     See  also  Eminent 
Domain;  Interstate  Commerce. 
CONTRACT, 

whether  action  ex  contractu  or  ex  delicto  against  telegraph  company,. 

§146, 
stipulations  on  messages  a  part  of  the  contract,  §  207. 
telegraph  companies  may  become  liable  for  defaults  of  connecting 

lines  by  contract,  §  264. 
loss  of  profits  on  intended  but  not  completed  contracts  as  an  ele- 
ment of  damages,  352. 
binding,  when  letter  of  acceptance  is  posted,  §  477. 

view  that  there  is  no   contract  until  letter  of  acceptance  re- 
ceived, §  477,  note, 
contract  complete   in  any  view  when  letter  actually   arrives. 
§477. 
immateriality  of  acceptance  communicated  by  a  stranger,  §  479. 
leasing  of  telegraph  line,  when  breach  of  a  contract  for  continuous- 
business,  §  521. 
CONTRACTS  BY  TELEGRAPH, 

validity  and  effect  of  contracts  by  telegraph,  §§  475-4S7. 
validity  of  contract  by  telegraph,  §  475. 
telegram  a  memorandum  under  statute  of  frauds,  §  476. 
when  offer  deemed  to  have  been  accepted,  §  477. 
place  of  contract:    offer  in  one  State,  acceptance  in  another,  §  478. 
certainty  in  the  proposition  and  acceptance,  §  479. 
view  that  the  company  is  not  the  agent  of  the  sender,  §  480. 
the  same  view  in  an  American  court,  §  481. 
weight  of  the  American  doctrine  to  the  contrary,  §  482. 
ratification  of  such  agency,  §  483. 
rights  of  sender  of  message  against  company  in  such  a  case, 

§484. 
illustration  :  sender  must  fulfill  order  as  delivered,  and  seek  re- 
course of  the  telegraph  company,  §  485. 
another  illustration,  §  486. 
a  qualification  of  this  rule,  §  487. 
CONTRIBUTION, 

distinctions   between  non-feasance  and  misfeasance  in  respect  of 
contribution  for  damages  for  negligence,  §  81. 
CONTRIBUTORY  NEGLIGEN*  K. 
of  servant,  master  not  liable,  §  91. 

not  contributory  negligence  for  receiver   of   message  to   omit  re- 
peating, §  237. 

(31) 


482  INDEX. 

CONTRIBUTORS  X  EGLIGENCE— Continued. 

case  where  plaintiff  exonerated  from  charge  of  contributory  negli- 
gence, §  411. 

duty  of  plaintiff  to  avert  damage  on  discovering  failure  of  com- 
pany, §§  410,  411,  412. 

when  not  bound  to  notify  company  of  its  error.  §  413. 

plaintiff  not  bound  to  invest  further  money  to  escape  loss,  §  415. 

further  as  to  contributory  negligence  of  the  sender,  §  416. 

contributory  negligence  of  the  person  addressed,  §  417.  See  also 
Nkuligence. 

COPY, 

proof  that  it  is  a  correct  transcript  necessary  to  its  admission  as 
evidence,  §  498. 
CORPORATION, 

for  a  gas  company  to  own  an  electric  light  company  a  fraud  on  the 
law,  §  38. 

liability  for  damages  of  private  corporations  owning  public  works. 
§63. 
CORRESPONDENCE, 

between  telegraph  operators,  admissibility  of,  in  actions  for  dam- 
ages, §  459. 

COST, 

right  to  recovery  of  cost  of  sending  message,  §  331. 

COURT  AND  JURY.    See  Law  and  Fact. 

CUSTOM, 

of  stock  dealers  to  weigh  cattle  at  daylight — effect  upon  question  of 

damages,  §  344. 
vof  doctor,  not  to  visit  patient  without  prepayment,  inadmissible  as 
•evidence,  §  460. 
'CUSTOM  OF  THE  REALM, 

basis  of  the  common  law  rule  respecting  common  carriers,  §  137. 

CUSTOMER, 

of  telegraph  company,  bound  to  know  its  rules,  §  210. 
unsoundness  of  this  view  suggested,  §  212. 
bound  by  rules  of  whose  existence  he  has  knowledge,  §  213. 

DAKOTA, 

statute  of,  authorizing  use  of  roads  and  streets  by  these  companies, 
§  59. 
DAMAGES, 
Bide  in  Hadley  v.  Baxendale: — 

the  measure  of  damages  governed  by  general  rules,  §  310. 
rule  in  Hadley  v.  Baxendale:    damages  in  contemplation  of  the  par- 
ties, §  311. 
that  rule  as  explained  in  a  leading  case  in  New  York,  §  312. 
special   circumstances   must  be    communicated   to   the    company, 
§313. 


INDEX.  483 

DAMAGES— Continued. 

English  cases  in  illustration  of  the  rule,  §  314. 
agents  who  receive  dispatches  for  transmission  are  agents  to  re- 
ceive such  information,  §  315. 
conclusions  flowing  from  these  rules,  §  316. 
Proximate  and  Bemote  Damages: — 

only  direct  or  proximate  damages  recoverable,  §  318. 

damages  due  to  the  operation  of  an  intervening  cause,  §  319. 

intervening  fraud  of  a  third  person,  §  320. 

non-delivery  of  message  asking  for  information,  §  321. 

error  in  message  notifying  date  of  trial  of  a  cause,  §  322. 

non- delivery  of  a  message  requesting  postponement  of  a  judicial 

trial,  §  323. 
other  instances  of  damages  too  remote,  §  324. 
loss  of  fee  by  a  professional  man,  §  325. 
losing  a  chance  of  obtaining  employment,  §  326. 

plaintiff ,  failing  to   obtain  employment:    rule   under  Indiana 

statute,  §  327. 
the  same  subject:  Nebraska  statute,  §  32S. 
loss  of  opportunity  to  save  debt  by  attachment,  §  329. 
operator  fraudulently  withholding  message  announcing  failure  of 
bank,  §  330. 

right  to  recover  the  cost  of  sending  message,  §  331. 
Loss  of  Profits: — 

mistake  in  transmitting  message  ordering  sales  or  making  or  di- 
recting -purchases,  §  335. 

mistakes  in  dispatches  ordering  goods,  §  336. 

ordering  broker  to  buy  or  sell,  §  337. 
mistake  resulting  in^goods  being  sent  to  the  wrong  place,  §  338. 
other  instances  of  loss  of  profits  where  dispatch  ordered  affirmative 

action,  §  339. 
damages  arising  from  mistakes  in  quoting  prices,  §  340. 

cases  in  illustration,  §  341. 
dispatch  quoting  prices  sent  by  a  volunteer,  §  342. 
damages  for  delay  of  message  accepting  offer  of  sale,  §  343. 

illustration  :   loss  of  weight  of  cattle,  §  344. 
view  that  rule  is  inapplicable  where  object  is  speculation,  §  :!!•">. 
loss  of  certain  profits  recoverable,  §  346. 
loss  of  uncertain  and  contingent  profits  not,  §  346. 
application  of  this  principle,  §  347. 
illustration  of  it,  §  348. 
further  illustrations,  §  349. 
further  illustrations,  §  350. 
a  modified  holding,  §  351. 

loss  of  profits  on  intended  but  not  completed  contracts,  §  :'>■">-• 
no  damages  under  illegal  contracts:  option  deals,  §  :'>•"»:'>. 


484  INDEX. 

I  >A  MAGES— Continued. 

Cipher  and   Unintelligible  Dispatches: 

application  of  the  rule  in  Hadley  v.  Baxendale  to  unintelligible  dis- 
patches, §  357. 

in  ease  of  cipher  or  unintelligible  messages,  nominal  damages 
only,  §  358. 

reasons  adduced  in  support  of  this  rule,  §  359. 

rule  applicable  to  unintelligible  dispatches,  though  not  in  cipher, 
§360. 

an  English  case  illustrating  this  rule,  §  361. 

a  Canadian  case  illustrating  this  rule,  §  362. 

American  cases  illustrating  it,  §  363. 
extrinsic  information  of  the  importance  of  the  message,  §  364. 
sufficient  that  the  company  is  put  upon  inquiry,  §  365. 
general  information  sufficient,  §  366. 

instances  of   dispatches  sufficiently  disclosing  the  nature  and 
importance  of  the  transaction,  §  367. 

further  illustration,  §  368. 
no  distinction  between  non-delivery  and  mistake,  §  369. 
stipulation  in  message  blanks,  §  370. 
stipulation  as  to  repeating,  §  371. 
cases  which  deny  that  there  is  any  distinction  between  cipher  and 

other  dispatches  in  respect  of  the  measure  of  damages,  §  372. 
exemplary   damages  for  the  non-delivery  of    cipher   dispatches, 

§373. 
unintelligible  dispatches  subject  to  parol  explanation,  §  374. 
evidence  that  agent  had  information  of  nature  of  message,  §  375. 

Injury  to  the  Feelings: — 

damages  given  for  injury  to  feelings  alone,.  §  378. 

judicial  observations  in  support  of  this  view,  §  379. 

illustrations,  §  380. 

rule  clearer  where  the  mental  is  coupled  with  the  physical  pain, 

§3S1. 
not  given  as  exemplary  damages,  382. 

illustrations,  §  383. 
view  that  no  damages  can  be  given  for  mere  mental  anguish,  §  384. 
husband  cannot  recover  for  injury  to  his  own  feelings  where  the 

action  is  for  an  injury  to  the  wife,  §  385. 
the  company  must  be  apprised  of  the  special  circumstances,  §  386. 
further  of  this  subject,  §  387. 

further  views  as  to  the  measure  of  damages  in  such  cases,  §  388. 
failure  to  deliver  a  telegram  calling  a  physician   in  a  case  of  con- 
finement, §  389. 

difference  between  quantity  of  pain  suffered  and  quantity  which 

would  have  been  suffered,  §  390. 
what  if  the  doctor  could  not  have  reached  the  patient  in  any 
event,  §  391. 


INDEX.  485 

DAMAGES— Continued.  ■ 

damages  for  failure  of  husband  to  attend  his  wife  in  ease  of  con- 
finement, §  392. 
quantum  of  damages  for  mental  suffering,  §  393. 

Contributory  Fault  of  Plaintiff: — 

duty  of  the  person  damaged,  on  discovering  the  failure  of  the  com- 
pany to  perform  its  duty,  §  410. 

bow  damages  affected  by  subsequent  action  of  plaintiff,  §  411. 
case  where  the  plaintiff  was   exonerated  from  charge  of  sub- 
sequent negligence,  §  412. 

when  not  bound  to  notify  company  of  error,  §  413. 

reselling  and  charging  company  with  difference,  §  414. 

plaintiff  not  bound  to  invest  further  money,  §  415. 

contributory  negligence  of  the  sender,  §  416. 

contributory  negligence  of  the  person  receiving  the  message,  §  417. 
Miscellaneous  Holdings: — 

exemplary  damages,  when  given,  §  39S. 

financial  condition  of  sender,  §  399. 

a  case  where  "  liberal  damages  were  allowed,"  §  400. 

damages  under  the  Wisconsin  statute,  §  401. 

special  damages  must  be  alleged  and  proved,  §  402. 

further  as  to  proof  of  damages,  §  403. 

damages  for  malicious  injury  to  telegraph  line,  §  14. 

release  of  damages  for  appropriation  of  land  by  acquiescence  of 
the  land-owner,  §  24. 

damages  not  recoverable  for  delay  in  transmitting  messages  unless 
delay  prejudicial,  §  303. 

petition    should    allege    whether   exemplary    or  actual   damages 
claimed — Texas,  §  44!>. 

evidence  on  question  of  damages  in  actions  against  telegraph  com- 
panies, §  461. 

petition  in  action  against  telegraph  company  claiming  damages  for 
mental  suffering,  §  452. 

example  of  a  petition  bad  because  damages  too  remote,  §  453. 

uniting  in  the  same  action  a  claim  for  a  statutory  penalty  and  a 
claim  for  damages,  §  454. 

DAMNUM  ABSQUE  INJURIA, 

no  recovery  for  delay  in  delivering  telegraph  message  unless  LI  cause 
damage,  §  303. 

DATE, 

stipulations  as  to  repeating  messages  do  not  apply  to  the  date,  §  2  10. 

allegation  of  delivery  of  message  for  transmission    in    March,  and 
proof  that  it  was  in  .January,  §  455. 
'•  DEAD"  WIRES, 

injury  to  workmen  by  "live"  wires  sagging  upon— liability,    93. 


486 


INDEX. 


DECLARATIONS, 

expressions  negativing  mental  suffering,  admissible   in   evidence, 

§  460. 
opinion  of  broker,  when   not  admissible  on   question  of  damages, 

§  460. 
of  wife  in  form  of  telegraph  messages,  when  not  admissible  against 
husband,  §  492,  note  4.    See  also  Pleading. 
DEDUCTION  FROM  PAY, 

of  operator — evidence  of  negligence,  §  461. 
DEGREE  OF  CARE, 

telegraph  company  liable  for  a  high  degree  of  care,  skill  and    dili- 
gence, §  141.    See  also  Negligent e. 
DEGREE  OF  SKILL, 

telegraph  company  liable  for  a  high   degree  of  care,  skill  and  dili- 
gence, §  141.    See  also  Negligence. 
DELAY, 

stipulation  as  to  repeating  does  not  excuse  delay,  §  22S. 

produced  by  negligence  of  connecting  line,  no  liability,  §  267. 

in  delivering  message  ordering  affirmative  action — damages,  §  339. 

damages  for  delay  of  message  acceptiug  offer  of  sale,  §  343. 

general  view  as  to  liability  for  delay,  §  295. 

rule  as  to  urgent  messages,  §  296. 

what  disclosures  sufficient,  §  297. 

what  delay  evidence  of  negligence,  §  298. 

reception  at  small  station  :  transmission  through  repeating  offices, 

§  299. 
question  how   affected   by  the   hours  of  closing  company's  office, 

'§  300. 
what  excuses  insufficient,  §  301. 

whether  plaintiff  injured  by  the  delay  a  question  for  the  jury,  §  302. 
no  recovery  of  damages  unless  delay  prejudicial,  §  303. 
delay  by  changing  route  in  consequence  of  bad  weather,  §  304. 
DELIVERY, 

stipulation  as  to  repeating  does  not  excuse  non-delivery,  §§  228,229. 
of  telegraphic  message  not  proved  by  producing  reply,  §  501.     See 
also  Non-Delivery. 
DEMURRER, 

instance  of  petition  demurrable  because  the  damages  too  remote, 
§453. 
DILIGENCE, 

telegraph  company  liable  for  a  high  degree  of  care,  skill  and   dili- 
gence, §  141. 
DISCRIMINATION, 

statutes  requiring  telegraph  companies  to  transmit  dispatches  in  the 
order  in  which  received,  §  157  et  seq. 


INDEX.  487 

DRAW-SPAN, 

telegraph  line  not  allowed  to  interfere  with,  §  12. 
DRIVER, 

negligence  of  driver  not  imputable  to  passenger,  §  74. 
EASEMENT.     See  Servitude. 
EIGHT  DAYS, 

delay  in  delivering  message  evidence  of  negligence,  §  298. 
ELECTRIC  LIGHT, 

who   may  question  electric  light  privilege  granted   by   municipal 
corporation,  §  41. 

power  of  municipal  corporation  to  own  an  electric  light  plant,  §  53. 
ELECTRIC  LIGHT  COMPANY.  * 

injury  to  workmen  through  negligently  turning  on  the  current  while 
trimming  lamp.  §  92. 
ELECTRIC  LIGHT  PLANT, 

classed  as  real  property,  §  504. 

subject  to.  lien  of  material-men,  §  516. 

power  of  municipal  corporation  to  own,  §  53. 

ELECTRIC  RAILWAYS, 

not  an  additioual  servitude  on  the  fee,  §  22. 

power  of  municipal  corporations  to  grant  the  use  of  their  streets  for, 
§26. 

injunction  agaiust  such  use  by  abutting  property  owners,  §  27. 
charter  power  to  authorize  use  of  electricity  as  a  motive    power  for 

street  railways,  §  42. 
electric  railway  trains  frightening  horses — liability,  §  84. 
ELECTRICAL  COMPANIES, 

on  what  grounds  liable  for  negligence,  §  64. 
whether  a  quasi  insurer,  §  65. 
theory  of  land-owner  collecting  dangerous  agencies  on  his  land. 

§65. 
bound  to  reasonable  care  in  proportion  to  danger  of   mischief, 

§66. 
how  far  liable  on  the  theory  of  trespass,  §  67. 
liability  under  civil  code  of  Louisiana,  §  68. 

ELECTRICAL  SUBWAYS, 

constitutionality  of  statutes  requiring  telegraph  wires  to  be  put  un- 
der ground,  §  32. 
ELEVATED  RAILROADS, 

right  of  telegraph  companies  to  extend  their  lines  along,  j  :'«. 

ELKVATOR, 

injury  to  servant  through  breaking  of  elevator  of  electric  light  tower 
— liability,  §  95. 

EMINENT  DOMAIN. 

telegraph  companies  may  take  land  for  stations,  §  2,  p.  I.    See  Con- 
demnation of  Land. 


488  INDEX. 

ENGLISH  RULE, 

denying  right  of  action  to  addressee,  §  422  et  seq. 

comments  upon  the  unsoundness  and  injustice  of  this  rule,  §424. 
exception  where  the  sender  is  agent  of  the  addressee,  §  425. 
ERROR, 

in  message  notifying  a  party  of  the  date  of  trial  of  a  cause,  §  322. 
when   party   not  bound  to  notify   telegraph   company  of  its  error, 
§  413. 
ESTOPPEL, 

sender  of  message  estopped  from  denying  assent  to  stipulations  con- 
tained in  it,  §  207. 
EVIDENCE, 

certain  evidentiary  matters  in  actions  for  damages  for  negligence  in 

the  use  of  streets,  highways  and  navigations,  §  85. 
admissibility  of  telephonic  communications  in  evidence,  §  121. 

conversations  received   through    a  public  telephone   operator, 

§  122. 
where  the  voice  of  the  speaker  is  not  recognized,  §  123. 
of  answers  of  persons  called  up  where  voice  not  recognized, 

§  124. 
reasons  for  holding  such  testimony  admissible,  §  125. 
proof  of  knowledge  of  regulation   limiting  liability  of  telegraph 

company,  §  206. 
of   knowledge  and  assent  to  stipulations  in  message  blanks,  §§  206- 

213. 
printed  conditions  evidence  of  assent  of  sender,  §  208. 
of  a  place  being  the  office  of  a  telegraph  company — sign  over  the 

door,  §  470. 
view  that  notice  of  stipulation  in  message  blank   must  be  brought 

home  to  the  sender  by  evidence  aliunde,  §  210. 
effect  »i  evidence  of  stipulations  in  message  blanks  as  to  repeating, 

§§  221,  222.  , 

evidence  of  gross  negligence  in  a  telegraph  company,  §  280. 
evidentiary  circumstances  rebutting  prima  facie  evidence  of  negli- 
gence in  a  telegraph  company,  §  2S1 . 
statements   made  to   messenger  when  relevaut  on  the  question   of 

negligence  in  delivering,  §  292. 
what  evidence  relevant  on   the   question  of  diligence  in   delivering 

message,  §  292. 
parol  explanation  of  unintelligible  or  cipher  dispatches,  §  374. 
evidence  that  agent  has  information  of  the  nature  of  the  message, 

§  375. 
proof  of  damages,  §  403. 

claiming  one  kind  of  damages  and  recovering  another,  §  404. 
declarations  of  agent  of  telegraph  company,  §458. 
admissibility  of  correspondence  between  telegraph  operators,  §  459. 
evidence  on  question  of  damages,  §  460. 


index.  489 

EVIDENCE— Continued. 

evidence  of  claim  of  indemnity  duly  made  of  telegraph  company, 
§  462. 

parol  evidence,  contents  of  such  claim,  §  463. 
admissibility  of  copy  of  telegraph  message,  §  464. 
judicial  notice  not  taken  of  telegraph  lines,  §  465. 
secondary  evidence,  contents  of  telegram,  §  466. 
declarations  of  agents  of  telegraph  companies — admissibility  of,  iu 

actions  for  damages,  §  458. 
deduction  from  the  pay  of  operator  in  fault,  §  461. 
understanding  of  addressee  of  message  as  to  its  contents,  §  461. 
reason  why  plaintiff's  brokers  did  not  buy.  §  461. 
understanding  of  the  contents  of  a  telegraphic   message — evidence 

of,  §  461. 

Telegraph  Dispatches  as  Evidence: — 

relevancy  of  telegraphic  dispatches  as  evidence,  §  492. 

obligation  of  the   telegraph   company  to  produce  the,  under  legal 
process— their  inviolability,  §  493. 

statutory  protection  of  such  messages,  §  494. 

sufficiency  in  the  description  in  the  subpoena  duces  tecum,  jj  495. 

which  is  the*  original,  the   dispatch   as  sent,  or  the  dispatch  as  re- 
ceived, §  496. 

when  the  message  as  sent  is  deemed  the  original.  §  497. 

proof  of  authenticity,  §  49S. 

presumption  that  the  message  as  delivered  to  the  company  was  de- 
livered to  the  person  addressed,  §  499. 

illustration,  §  500. 

delivery  not  proved  by  producing  reply,  §  501. 

under  what  circumstances  the  copy  is  admissible,  §  502. 
illustrations,  §  503. 

when  oral  evidence  admissible,  §  504. 

illustration:  secondary  evidence  admissible,  §  505. 

when  parol  evidence  competent  without  notice  to  produce,  v  506. 

has  evidentiary  effect  of  a  letter,  §  507. 

notice  of  injunction  by  telegram,  §  508. 

English  practice:  how  such  notice  communicated   by  telegram 
and  duty  of  sheriff's  officer  respecting  same,  §  509. 
EVIDENCE  OF  NEGLIGENCE, 

when  the  happening  of  an   accident  is  evidence  of  negligence 
ipsa  loquitur,  §  273. 

the  undertaking  and  failure  constitute  prima  fade  evidence  of  neg- 
ligence, §  274. 

failure  to  transmit,  §  275. 

error  in  transmission,  §  276. 

how,  in  cases  where  there  is  a  stipulation  against  liability   unless 
the  message  is  repeated,  §  277. 

incongruity  of  these  holdings  pointed  out,  g  278 


490  INDEX. 

EVIDENCE  OF  NEGLIGENCE— Continued. 

a  corresponding  divergence  of  opinion  in  the  ease  of  common  car- 
riers, £  279. 
what  circumstances  afford  evidence  of  "gross  negligence, '"  §  2S0. 
evidentiary  circumstances  rebutting  this  prima  facie  case,  §  281. 
burden  as  to  free  delivery  limits,  §  282.    See  also  Negligence. 

EXCEPTIONS, 

special  exceptions  to  pleadings  in  actions  against  telegraph  compa- 
nies under  Texas  system,  §  452. 

EXCLUSIVE  PRIVILEGES, 

no  exclusive  privilege  conferred  upon  telegraph  companies  by  acts 
of  congress,  §  8. 

validity  of  State  grants  of  exclusive  privileges  to  telegraph  compa- 
nies, §  9. 

exclusive  privileges  in  such  companies  under  U.  S.  statutes,  §  10. 

struggles  between  electrical  companies  for  the  exclusive  use  of  the 
streets,  §§  37,  38,  39. 

charter  power  of  control   does  not  extend  to  the   granting  of  ex- 
clusive privileges,  §  40. 
EXCUSES, 

for  delay  in  transmitting  messages,  §  301. 
EXEMPLARY  DAMAGES. 

when  not  recoverable  against  telegraph  companies,  §  373. 

given  as  punishment  merely,  §  3S1. 

damages  for  mental   suffering  not   given   as  exemplary   damages, 
§  382. 

given  only  in  cases  of  wantonness,  malice,  etc.,  §  398. 

recovery   only  in  case  of  notice  of  special  circumstances  requiring 
urgency,  §  398. 
EXPRESSIONS, 

indicative  of  mental  suffering — admissibility,  ;;  460. 
FAILURE, 

to  transmit  message  altogether,  not  excused  by  stipulation  as  to  re- 
peating, §§  228,  229. 

stipulation  as  to  time  for  presenting  claim  for  damages  held  to  ap- 
ply only  where  the  message  is  actually  sent,  §  252. 

failure  to  transmit  telegraph  message,  evidence  of  negligence,  §  275. 
See  also  Non-Delivery. 

FAILURE  OF  BANK, 

damages  for  withholding  message  announcing  failure  of  bank,  §330. 
FEELINGS.     See  Mental  Suffering. 
FEES, 

damages  for  loss  of  fees  by  professional  men  in  actions  against  tele- 
graph companies,  §§  325,  326. 


INDEX.  491 

FINANCIAL  CONDITION, 

of  the  sender  of  a  telegraphic   message  as  au   element  of  damages, 

§  399. 
of  telegraph  company  not  admissible  on  question  of  damages,  §  460. 
FIRE  ALARM  TELEGRAPH, 

company  liable  for  invading  private  property,  cutting  trees,  etc., 
§35. 

FLETCHER  v.  RYLANDS, 

doctrine  of,  applied  to  liability  of  electrical  companies,  §  65. 
'•FOLLOW  COPY," 

telegraph  company  bound  to  transmit  message  as  written,  §  151. 
not  liable  for  mistake  of  agent  in  correcting  erroneous  message, 

§  152. 
not  bound  to  transmit  oral  message,  §  153. 
FOREIGN  CORPORATION, 

when  no  right  to  erect  poles  in  the  public  streets.  §  29. 
FORGED  MESSAGES, 

telegraph  couipanies  liable  for  transmitting,  j§  146,  147. 
FORM  OF  ACTION, 

whether  action   against  telegraph   company  in  contract  or  in   tort, 
§§  146,  44S. 
FRAUD, 

telegraph   companies   not  liable  for  remote  frauds  consequeut  on 

negligence  of  their  agents,  §  148. 
not  excused  by  stipulation  for  repeating  telegraph  message,  §  22 1. 
excused  by  stipulation  as  to  repeating  telegraph  message.  §  232. 
limitation  of  thirty  days  as  the  time  for  presenting  claim  for  dam- 
ages void  as  tending  to  fraud,  §  248. 
intervening  fraud  of  a  third  person  as  a  ground  of  damages  against 

a  telegraph  company,  §  320. 
damages  against  telegraph  companies  for  fraud  of  operator  in  with- 
holding message  announcing  failure  of  bank,  §  330. 
fraud  necessary  to  give  right  of  action  to  addressee  under  English 
rule,  §  422. 
FREE  DELIVERY, 

burden  of  proof  as  to  free  delivery,  limits  of  telegraph   company, 
§  282.  % 

FRIGHTENING  HORSES. 

electrical  trains  frightening  horses— negligence— liability.  *  v  I . 
FUSIBLE  PLUG. 

device  for  severing  electric  wire  ia  case  of  excess  of  currenl  com- 
municated from  another  broken  wire,     50,  i'-  67. 

GAS-PIPES, 

under-grmind  gas-pipes  an  additional  servitude  on  the  fee,  >  22. 


492  INDEX. 

GROSS  NEGLIGENCE, 

not  excused  by  stipulation  for  repeating  telegraph  message,  §  223. 

excused  by  stipulation  as  to  repeating  telegraph  message,  §  232. 

when  failure  to  transmit  dispatch  is,  §  275. 

what  circumstances  afford  evidence  of- gross  negligence  in  a  tele- 
graph company,  §  280. 

mutilation  of  telegraph  message  held  to  be,  §  280.  , 

what  mistakes  in  transmitting  sufficient  to  show  gross  negligence, 
§  280. 

failure  of  telegraph  company  to  employ  careful  and  skillful  oper- 
ators held  to  be  gross  negligence,  §  2S0. 
GUY  WIRES, 

injuries  from — negligence — liability,  §  79. 
HADLEY  V.  BAXENDALE, 

rule  of  damages  in,  applicable  to  telegraph  companies,  §  311. 

application  of  rule  in  unintelligible  and  cipher  dispatches,  §  357  et 
seq. 
HEARSAY  EVIDENCE, 

rule  of,  excludes  reply  to  telegraph  message  as  evidence  of  con- 
tents of  first  message,  §  501. 
HIGHWAYS, 

whether  telegraph  lines  an  additional  servitude  upon,  so  that  owner 
of  fee  entitled  to  further  compensation,  §  18. 

statutes  authorizing  the  use  of  roads  and  streets  by  telegraph  and 
telephone  companies,  §  59. 

negligent  injuries  by  these  companies  in  the  use  of  streets,  high- 
ways and  navigation,  §§  70-85. 

power  of  municipal  corporations  to  grant  use  of  streets  to  electrical 
railways,  §  26. 

injunction  against  such  use  by  abutting  property  owner,  §  27. 

when  telegraph  poles  in  streets  a  public  nuisance,  §  28. 

liability  of  municipal  corporation  for  allowing  telegraph   poles  to 
be  erected  in  its  streets,  §  29. 

power  of  city  to  designate  the  streets  to  be  occupied,  §  30. 

power  of  city  to  remove,  §  31. 

constitutionality  of  statutes  requiring  wires  to  be  put  under  ground. 

•  §  32. 

right  of  telephone  companies  to  erect  poles  in  the  streets  of  cities, 
§33. 

rights  of  abutting  property  owners,  §  34. 

invading  private  property — cutting  trees,  §  35i 

revocation  of  license  by  municipal  corporation,  j  3G. 

struggles  by  these  companies  for  the  exclusive  use  of  the  streets,  §  37. 
plaintiff,  an  electric  light  company,  organized   by  a  gas-light 
company,  §  38. 

question  as  depending  upon  priority  of  occupancy,  §  39. 

charter  power  of  control  does  not  extend   to  the  granting   of  ex- 
clusive privileges,  j  40. 


INDEX.  493 

HIGHWAYS— Continued . 

who  may  question  electric  light  privilege   granted   by   municipal 

corporation,  §  41. 
charter  power  to  authorize  the  use  of  electricity  as  a  motive  power 

for  street  railways,  §  42. 
injunction  by  telephone  company  against  electric  railway  company, 

§43. 
where  both  companies  use  the  earth  for  a  return  circuit,  §  44. 
further  observations  on  this  subject,  §  45. 
tax  for  the  privilege  of  using  city  streets,  §  46. 
reasonableness  of  license  fee  for  use  of  streets,  §  47. 
municipal  control  as  to  the  mode  of  suspending  or  laying  telegraph 

wires,  §  48. 
futility  of  attempts  at  statutory  legislation,  §  49. 
dangers  to  be  provided  against  by  such  regulations,  §  50. 
New  York  board  of  electrical  control,  §  51. 
mandamus  to  compel  city  to  designate  places  for  erecting  electric 

light  poles,  §  52. 
power  of  municipal  corporation  to  own  an  electric  light  plant,  §  53. 
recent  statutes  regulating  electrical  companies,  §  54. 
statutes  authorizing  the  laying  of  such  wires  under  ground,  §  55. 
statutes  committing  the  subject  to  the  regulation  of  municipal  cor- 
porations, §  56. 
statutes  and   municipal  regulations   authorizing  the   stringing  of 

wires  on  existing  poles,  §  57. 
statutes  restraining  invasions  of  private  property,  §  58. 
statutes  authorizing  the  use  of  roads  and  streets  by  telegraph,  and 

telephone  companies,  §  59.     See  also  Negligence. 

HORSE  RACING, 

what  one  would  have  gained  on  a  horse  race,  not  an   element  of 
damages,  §  347. 

HORSES, 

electrical  trains  frightening  horses — negligence — liability,  §  S4. 

HOTEL  CLERK, 

implied  authority  of  hotel  clerk  to  receive  a  dispatch  for  a  guest, 
§289. 
HUSBAND  AND  WIFE, 

no  damages  to  husband  in  action  for  injury  to  wife,  §  385. 
damages   against  telegraph   company  for  failure  of  husband  to  at- 
tend wife  in  case  of  confinement,  §  392. 
husband  suing  for  wife  against  telegraph   company  under  Texas 
code,  §  443. 

IDAHO, 

statutes  of,  punishing  malicious  trespasses  upon   poles  and   wires, 
§  13,  p.  15. 
IDENTIFICATION, 

of  telegraph  messages  in  subpcenas  duces  tecum,  §  493. 


494  INDEX. 

ILLEGAL  CONTRACTS, 

loss  of  profits  on  illegal  contracts  not  recoverable  against  telegraph 
companies,  §  353. 

ILLINOIS, 

statute  of,  authorizing  use  of. roads  and  streets  by  these  companies, 
§  59. 

ILLITERATE  PERSONS, 

when  not  bouud  by  stipulations  in  message  blanks  printed  in  small 

type,  ><  208. 

IMPROPER  LANGUAGE, 

regulation  against  u.-e  of  telephone  for,  reasonable,  §  120. 
IMPUTED  NEGLIGENCE, 

negligence  of  driver  not  imputable  to  passenger,  §  74.    See  Neg- 
ligence. 
INDIANA, 

decisions  under  Indiana  statute  relative  to  regulation  of  telephone 

companies,  §  117. 
statute  of,  giving  penalty  for  bad  faith,  partiality  or  discrimination 
by  telegraph  companies  in  discharging  their  public  duties,  §  159. 
does  not  extpnd  to  cases  of  mere  negligence,  §  159. 
not  a  statute  of  liquidated  damages,  but  awards  a  penalty,  §  161. 
parties  to  actions  under  Indiana  statute  giving  penalty,  §  438. 
under  Indiana  statute  giving  special  damages.  §  439. 
INDUCTION, 

the  danger  of  atmospheric  induction  in  electrical  interferences  dis- 
cussed, §  50,  p.  64. 

INJUNCTION. 

by  abutting  property  owners  against  use  of  street  by  electric  rail- 
way company,  §  27. 
to  restrain  city  from  removing  electrical  poles  as  nuisances,  §  32. 
injunction  refused  against  compelling  telegraph   company  to   put 

wires  under  ground,  §  32. 
by  telephone  company  against  electric  railway  company,  §  43. 

where  both  companies  use  the  earth  for  a  return  circuit,  §§  44. 
45. 
denied,  to  compel  telegraph  company  to  furnish  stock  quotations  to 

a  "  bucket  shop,"  §  145. 
notice  of,  may  be  given  by  telegram,  §§  SOS,  509. 

how  such  notice  communicated  under  English  practice,  §  509. 
duty  of  sheriff's  officer  respecting  same,  §  509. 
against  the  use  of  telegraph   ciphers  employed   in  private  trade, 
§517. 

INQUIRY, 

putting  company  on  inquiry  equivalent  to  notice,  §  365.    See  also 
Notice. 


INDEX. 


495 


INSTRUCTIONS, 

when  properly  refused  because  not  relevant  to  the  issue,  §  94. 

jury  how  instructed  as  to  statutory  obligation  to  transmit  messages 

in  the  order  received,  §  162. 
in  actions  against  telegraph  companies — precedents  of,  §  470. 

INSURER, 

telegraph  company  not  liable  as,  §  139. 

INTERSTATE  COMMERCE, 

telegraph  companies  as  instruments  of,  §  1. 

right  of  telegraph  companies  to  extend  lines  upon  interstate  bridge 
over  navigable  waters,  §  11. 

bow  far  State  statutes  giving  penalties  against  telegraph    com- 
panies apply  to  interstate  messages,  §§  164,  165. 

when  municipal  and  State  taxation  an  i  nterference  with  interstate 
commerce,  §  52u. 
INTERSTATE  LAW, 

State  statutes  requiring  service  of  the  public  equally  where  com- 
panies' lines  extend  into  other  States,  §  112. 
State  regulation  of  interstate  telephone  messages  void,  §  113. 

offer  by  telegram  in  one  State  and  acceptance  in  another,  §  47S. 
INVIOLABILITY  OF  TELEGRAPH  MESSAGES, 

obligation  of   telegraph  company  to  produce  messages  under  legal 
process,  §  493. 

statutory  protection  of  such  messages,  §  494. 

sufficiency  of  their  description  in  a  subpoena  duces  tecum,  §  495.# 

JUDICIAL  NOTICE, 

not  taken  of  telegraph  lines,  §  465. 

KNOWLEDGE, 

proof  of  knowledge  of  regulation  limiting  liability  of  telegraph 

company,  §  206. 
of  loss,  effect  of,  on  validity  of  limitation  in  message  blank  as  to 

time  of  presenting  claim  for  damages,  §  250.    See  Notice. 

LAND, 

telegraph  companies  may  take  land  for  stations,  §  2,  p.  4. 
damages  for  delay  of  message  accepting  offer  for  land,  §  343.     See 
Condemnation  of  Land. 
LAND  OWNER, 

liable  for  collecting  dangerous  agencies  on  his  land,  §  65. 

LAW  AND  FACT, 

whether  requisite  care  employed  by  telegraph  company  a  question 

for  a  jury,  §  142. 
whether  plaintiff  injured  by  delay  a  question  for  the  jury,  §  302. 
waiver  of  stipulations  as  to  repeating  a  question  for  a  jury,  §  239. 
diligence  in  delivering  message,  whether  a  question  of  law  or  fact, 

§287. 
cases  where  ruled  as  a  question  of  law,  §  288. 


496  INDEX. 

LAW  OF  PLACE, 

offer  by  telegram  in  one  State  and  acceptance  in  another,  §  478. 
LEASING. 

of  a  telegraph  line,  when  breach  of  a  contract  for  continuous  busi- 
ness, §  521. 
LETTER, 

telegram  and  letter  have  the  same  evidentiary  effect,  §  507. 
LIBEL, 

telegraph^eompany  liable  for  transmitting  libelous  message,  §  150. 
LIBERAL  DAMAGES, 

instance  of  liberal  damages  against  a  telegraph  company,  §  400.  See 
Damages. 
LICENSE, 

invalidity  of  State  license  tax  imposed  upon  telegraph  business, 

§  ". 
ratification  of  license  to  telephone  company  by  municipal  corpora- 
tion, §  3G. 
taxation  for  the  privilege  of  using  city  streets,  §§  4G,  47. 
license  from  municipal  corporation,  no  defense  to  action  for  negli- 
gent injury,  §  71.    See  also  Taxation. 
LIENS.    See  Mechanics'  Liens. 
LIMITATION. 

of  time  for  presenting  claims  for  damages  §§  245-256. 
what  stipulations  deemed  reasonable  §§  245,  246. 
•        limitation  of  sixty  days  not  unreasonable,  §  247. 
validity  of  limitation  of  less  than  sixty  days,  §  248. 
circumstances  under  which  such  limitation  too  short,  §  249. 
thirty  days'  limitation  with  knowledge  of  loss  sufficient,  §  250. 
whether  such  limitations  applicable  in  actions  for  statutory  pen- 
alties, §  251. 
view  that  they  apply  only  in  cases  where  the  message  is  actu- 
ally sent,  §  252. 
what  is  a  waiver  of  a  written  notice  of   claim  for   damages, 

§  253. 
such  notice  must  be  delivered  to  an  authorized  agent,  §  254. 
when  such  a  limitation  begins  to  run,  §  255. 
commencement  of  suit  equivalent  to  a  notice  in  writing,  §  256. 
LIQUIDATED  DAMAGES, 

Indiana  statute  against  partiality,  discrimination,  etc.,  by  telegraph 
companies  not  a  statute  of  liquidated  damages,  but   awards   a 
penalty,  §  161.    See  Penalties;  Damages. 
"LIVE"  WIRES, 

sagging  upon  "  dead  "  wires — injury  to  servant,  §  93. 
LORD'S  DAY.    See  Sunday. 
LOSS, 

of  telegram,  proof  of,  to  let  in  secondary  evidence,  §  466. 


INDEX.  497 

LOSS  OF  WEIGHT, 

damages  for  loss  of  weight  of  cattle  pending  delay,  §  344. 
LOUISIANA, 

statute  of,  authorizing  use  of  roads  and  streets  by  telegraph  and 

telephone  companies,  §  59. 
liability  of  electrical  companies  for  negligent  injuries  under  civil 
code  of  Louisiana,  §  68. 

MALFEASANCE, 

necessary,  to  give  right  of  action  to  addressee  under  English  rule, 
§  323. 

MALICIOUS  MISCHIEF, 

statutes  punishing  malicious  trespasses  upon  telegraph  poles  and 

wires,  §  13. 
damages  for  cutting  telegraph  wires,  §  14. 

MANDAMUS, 

to  compel  city  to  designate  places  for  erecting  electric  light  poles, 

§  .">2. 
lies  to  compel  telephone  companies  to  serve  the  public  equally, 
§106. 
although  using  United  States  patents,  §  105. 
and  although  under  contract  not  to  do  so  with  parent  com- 
pany, §  107. 
pleadings  in  such  actions,  §  10S. 
instance  of  a  responsive  answer,  §  10S. 
lies  to  compel  telephone  companies  to  furnish  equal  facilties  to  tel- 
egraph companies,  §§  109,  110.     Contra,  §  111. 

MARKET  REPORTS, 

liability  for  furnishing  a  customer  incorrect  market  reports,  §  264. 
mistakes  by  telegraph  companies  in  furnishing   market   reports — 
damages,  §  340. 

MARYLAND, 

statute  of,  for  formation  of  telegraph  and   telephone  companies, 
§  55. 
for  the  formation  of  electrical  companies,  §  55. 

MASTER  AND  SERVANT, 

negligent  injuries  by  these  companies  to   their  servants — liability, 
§§  89-95. 
no  liability  if  servant  injured  through  patent  defect  not  obvi- 
ously dangerous,  §  90. 
nor  if  injured  through  contributory  negligence,  §  91. 
liability  if  servant  injured  through  negligence  in  turning  on 

current.  §  92. 
or  if  'dive"  wires  sag  upon  "dead"  wires,  §  93. 
(32) 


498  INDEX. 

MASTER  AND  SERVANT— Continued. 

averring  one  kind  of   negligence  and  recovering  upon  another, 

§  94. 
injury  to  employee  by  working  elevator  of  electric  light  tower, 

§95. 

MATERIAL, 

telegraph  companies  may  take  material  for  posts,  piers,  stations, 
etc.,  §  2,  p.  4. 
MAXIMS, 

sic  utere  tuo  ut  alienum  non  laedas,  §  63. 

res  ipsa  loquitur,  §§  220,  273. 

causa  proximo,,  non  remota  spectatur,  §§  72,  346. 

MECHANICS'  LIEN, 

electric  light  plant  subject  to,  §  516. 
MENTAL  SUFFERING, 

as  an  element  of  damages  against  telegraph  companies,  §  373. 
damages   against  telegraph  companies  for  injury  to  the  feelings 

alone,  §§  378,  379,  380. 
rule  clearer  where  mental  suffering  coupled  with  physical  pain, 

etc.,  §  381. 
damages  for  mental  suffering  not  given  on  the  theory  of  exemplary 

damages,  §  382. 
view  that  no  damages  can  be  given  for  mere  mental  anguish,  §  384. 
husband  cannot  recover  damages  for  injury  to  his  own  feelings  in 

an  action  for  an  injury  to  his  wife,  §  3S5. 
rule  that  the  company  must  be  apprised  of  the  special   circum- 
stances, §  386. 
further  views  as  to  the  measure  of  damages  in  such  cases,  §  388. 
failure  to  deliver  a  telegram  calling  a  physician  in  a  case  of  con- 
finement, §  389. 
difference   between   quantity   of    pain  suffered    and   quantity 

which  would  have  been  suffered,  etc.,  §  390. 
what  if  the  doctor  would  not  have  reached  the  patient  in  any 
event,  §  391. 
damages  for  failure  of  husband  to  attend  his  wife  in  case  of  con- 
finement, §  392. 

quantum  of  damages  for  mental  suffering,  §  393. 

petition  in  action  against  telegraph  company  claiming  damages  for 

mental  suffering,  §  452. 
expressions  indicative  of — admissibility,  §  460. 
MESSAGE, 

telegraph  company  to  transmit  message  as  written,  §  151. 
stipulations  in  message  blanks  a  part  of  the  contract.  §§  207,  208, 

209. 


INDEX.  499 

MESSAGE— Continued . 

view  that  such  stipulations  must  be  brought  home  to  sender  by 
evidence  aliunde,  §  210. 
when  copy  of,  admissible  in  evidence,  §  464. 
when  secondary  evidence  of  contents  of,  admissible,  §  466. 
a  good  memorandum  under  the  statute  of  frauds,  §  476. 
telegraph  messages  as  evidence,  §§  492-509. 

relevancy  of  telegraph  dispatches  as  evidence,  §  492. 
obligation  of  company  to  produce  messages  under  legal  process, 

§493. 
inviolability  of  telegraph  messages,  §§  493,  494. 
statutory  protection  of  such  messages,  §  494. 
sufficiency  of  description  in  subpoena  duces  tecum,  §  495. 
whether  the  original  is  the  dispatch  sent  or  the  dispatch  re- 
ceived, §  496. 

when  dispatch  sent  deemed  the  original,  §  497. 
proof  of  authenticity  of  dispatch,  §  49S. 

presumption  that  message  as  delivered  to  company  was  deliv- 
ered to  the  person  addressed,  §§  499,  500. 
delivery  not  proved  by  produciug  reply,  §  501. 
under  what  circumstances  copy  of  message  admissible,  §§  502. 

503. 
when  oral  evidence  admissible,  §  504. 
when  secondary  evidence  admissible,  §  505. 
when   parol  evidence  admissible  without  notice  to  produce, 

§  506. 
message  has  the  evidentiary  effect  of  a  letter,  §  507. 
notice  of  injunction  by  telegram,  §  508. 

duty  of  sheriff's  officer  respecting  such  notice,  §  509. 

MILITARY  ROADS, 

telegraph  companies  may  operate  lines  upon,  §  2,  p.  4. 
MINNESOTA, 

statute  of,  authorizing  use  of  roads  and  streets  by  telegraph  and 
telephone  companies,  §  59. 

MISFEASANCE, 

theory  of,  in  support  of  right  of  action  in  addressee  of   message, 

§428. 
theory  that  the  addressee  must  sue  in  tort,  §  430. 

MISSISSIPPI, 

statute  of,  giving  penalty,  §  441. 

MISSOURI, 

statute  of,  committing  regulation  of  electrical  companies  to  munici- 
pal corporations,  §  56. 

statute  of,  authorizing  use  of  roads  and  streets  by  these  companies, 
§  59. 


500  INDEX. 

MISSOURI— Continued . 

State  regulation  of  telephone  charges  under  statutes  of,  §  115. 
statute  of,  giving  penalty  against   telegraph   companies  for  par- 
tiality, negligence,  etc.,  §  160. 

MISTAKE, 

telegraph  company  not  bound  for  mistake  of  agent  in  correcting 

erroneous  message.  §  152. 
in  transmitting  telegraphic  message,  evidence  of  negligence,  §  27G. 
damages  for  mistake  in   message  resulting  in  goods  being  sent  to 

the  wrong  place.  §  33S. 
of  telegraph  company,  in  furnishing  market  reports,  §  340. 
in  sending  a  dispatch  by  a  volunteer,  quoting  prices,  §  342. 
when  addressee  may  sue  for,  §§  42S,  42!). 
in  transmitting  messages,  as  a  ground  of  damages.    See  Damages; 

Negligence. 

MONEY  ORDER, 

telegraph  company  liable  for  cashing  fictitious  money  order.  §  149. 

MONOPOLIES, 

not  favored,  §  37. 

monopoly  of  streets  not  granted  to  electrical  companies,  gas-light 

companies,  etc.,  §§  37,  38. 
question  how  far  dependent  on  the  priority  of  occupancy,  §  39. 
charter  power  control  does  not  extend  to  the  granting  of  exclusive 

privileges,  §  40. 
license  granted  by  city  not  questionable  except  by  one  claiming  an 

exclusive  or  concurrent  right,  §  41. 

MUNICIPAL  CORPORATION, 

power  of,  to  grant  use  of  streets  to  electric  railways,  §  26. 
injunctions  against  such  use  by  abutting  property  owners,  §  27. 
when  telegraph  poles  in  streets  deemed  a  public  nuisance,  §  28. 
liability  of    municipal  corporation   for  allowing  them  to  be 

erected.  §  29. 
power  of  city  to  designate  streets  to  be  occupied,  §  30. 
or  to  remove  the  poles  altogether,  §  31. 
constitutionality  of  statutes  requiring  wires  to  be  put  underground, 

§32. 
right  of  telephone  companies  to  erect  poles  in  the  streets  of  cities, 
§33. 
rights  of  abutting  property  owners  in  such  cases,  §  34. 
invading  private  property — cutting  trees,  etc.,  §  35. 
ratification  of  license  by  municipal  corporation,  §  36. 
struggles  by  these  companies  for  exclusive  use  of  the  streets,  §  :>7. 
instance  where  an  electric  light  company  was  organized  by  a 

gas  company,  §  3S. 
as  depending  upon  the  priority  of  occupancy.  §  39. 


INDEX.  501 

MUNICIPAL  CORPORATION— Continued. 

charter  power  control  does  not  extend  to  the  granting  of  ex- 
clusive privileges,  §  40. 
who  may  question  electric  light  privilege  granted  by  munici- 
pal corporation,  §  41. 
charter  power  to  authorize  use  of  electricity  as  motive  power 
for  street  railways,  §  42. 
injunctions  by  telephone  companies  against  electric  railway  com- 
panies, §  43. 
where  both   companies  use  the  earth    for   a   return    circuit, 
§§  44,  45. 
tax  for  the  privilege  of  using  city  streets,  §  46. 
reasonableness  of  license  fee  for  use  of  streets,  §  47. 
municipal  control  as  to  the  mode  of  suspending  or  laying  telegraph 

wires,  §  4S. 
futility  of  attempts  at  statutory  regulation,  §  49. 

dangers  to  be  provided  against  by  such  regulations,  §  50. 
New  York  board  of  electrical  control,  §  51. 
mandamus  to  compel  city  to  designate  places  for  erecting  electric 

light  poles,  §  52. 
power  of   a  municipal  corporation  to  own  an  electric  light  plant, 

'§53. 
statutes  committing  regulation  of  electrical  companies  to  municipal 

corporations,  §  56. 
municipal  regulations  authorizing  the  stringing  of  wires  on  exist- 
ing poles,  §  57. 
municipal  corporation  no  power  to  infringe  patent  right,  §  53. 
license  by,  no  defense  to  negligent  injury  in  occupation  of  street, 

§71. 
right  of  contribution  against  electric  light  company  for  damages 

for  negligent  injury,  §  81. 
no  power  to  regulate  telephone  charges  unless  expressly  granted, 

§116. 
no  power   to  impose  tax  on  telegraph  companies  outside  of  city 

limits,  §  518. 
municipal  tax  not  exempting  government  business  void,  §  519. 
municipal  tax  interfering  with  interstate  commerce  void,  §  520. 

MUTILATED  MESSAGE, 

production  of,  held  to  be  evidence  of  gross  carelessness,  §  2S0. 
NAVIGABLE  WATERS, 

telegraph  companies  may  operate  lines  across,  §  2,  p.  4. 
right  of  telegraph  companies  to  extend  their  lines  upon  interstate 
bridges  over  navigable  waters,  §  11. 
not  allowed  to  interfere  with  the  opening  of  the  draw-span, 

§12. 
may  not  obstruct  navigation  by  subaqueous  cable,  §  12. 


502  INDEX. 

NAVIGATION, 

not  to  be  obstructed  by  telegraph  companies,  §  2,  p.  4. 
negligent  injuries  by  these  companies  in  the  use  of  streets,  high- 
ways and  navigation,  §§  70,  85. 
liability  of  these  companies  for  obstructing  navigation.  §  82. 
liability  of  owner  of  vessel  injuring  submarine  cables,  §  83. 

NEBRASKA, 

statute  of,  committing  regulation  of  electrical  companies  to  munici- 
pal corporations,  §  56. 

statute  of,  authorizing  use  of  roads  and  streets  by  these  companies, 
§  59. 

NEGLIGENCE, 

general  views  of  the  liability  of  private  corporations  owning  public 

works,  §  63. 
theories  on  which  electrical  companies  liable  for  negligence,  §  64. 
whether  a  quasi  insurer:   collecting  dangerous  agencies  on  one's 

own  land,  §  65. 
reasonable  care  is  proportionate  to  danger  of  mischief,  §  66. 
how  far  liability  rests  on  the  principle  of  trespass,  §  67. 
under  the  civil  code  of  Louisiana,  §  68. 
non-liability  of    postmaster-general  operating  postal  telegraph, 

§69. 
general  proposition  in  regard  to  liability  for  negligence  in  the  use 
of  streets,  §§  70-84. 
license  from  the  city  no  defense,  §  71. 
proximate  and  remote  cause,  §  72. 
contributory  negligence  of  the  traveler,  §  73. 
when   contributory    negligence    of    driver    not    imputable  to 

passenger,  §  74. 
liability  where  poles  are  erected  in  portions  of  street  prohibited 

to  travel,  §  75. 
injuries  from  improper  location  of  poles,  §  76. 
collisions  in  consequence  of  horses  running  away,  §  77. 
injuries  from  overhanging  wires,  §  78. 
injuries  from  guy  wires,  §  79.    . 

injuries  from  poles  being  blown  down  by  storms,  §  SO. 
right  of  contribution  by  municipal  corporation  against  electric 
light  company,  §  SI. 
electric  trains  frightening  horses,  §  S4. 
negligent  injuries  to  their  own  employees,  §§  S9-95. 
injuries  to  the  company's  servants,  §  89. 

servants  injured  through  patent  defect  not  obviously  danger- 
ous, §  90. 
injuries  through  the  contributory  negligence  of  the  servant, 

§91. 
injuries  to  workmen  through  negligently  turning  on  the  cur- 
rent, §  92. 


INDEX.  503 

NEGLIGENCE— Continued. 

injuries  to  workmen  by  reason  of   "live"  wires  sagging  upon 

"dead1'  wires,  §  93. 
averring  one  kind  of   negligence  and  recovering  on  another, 

§94. 
breaking  of  elevator  of  electric  light  tower,  §  95. 
telegraph  companies  liable  for  negligence,  §  139. 
telegraph  companies  liable  for  want  of  what  degree  of  care,  §  140. 
view  that  they  are  liable  for  want  of  a  high  degree  of  care,  etc., 
'»  §141. 

whether  requisite  care  employed,  a  question  for  a  jury.  §  142. 
telegraph  company  not  liable  for  remote  fraud  following  negligence 

of  its  agent,  §  148. 
liable  for  transmitting  forged  messages,  §§  146,  147. 
Indiana  statute  giving  penalty  against  telegraph  company  for  par- 
tiality, bad  faith,  etc.,  does  not  extend  to  negligence,  §  160. 
Missouri   statute  giving  penalty  against  telegraph  companies  for 

negligence,  etc.,  §  160. 
Arkansas  statute  giving  penalty  against  telegraph  companies  does 

not  extend  to  mere  negligence,  §  163. 
when  not  excused  by  stipulations  in  message  blanks  as  to  repeat- 
ing, §  218  et  seq. 
view  that  stipulations  as   to  repeating  in  message  blanks  excuse 

mistakes  not  arising  from  gross  negligence,  §§  223-227. 
evidence  of  negligence  where  dispatch  was  received  from  connect- 
ing line,  §§  266,  267. 
evidence  of  negligence  by  telegraph  companies,  §§  273-282. 

when  the  happening  of  an  accident  is  evidence  of  negligence — 

res  ipsa  loquitur,  §  273. 
undertaking  and   failure  prima  facie  evidence  of   negligence, 

§274. 
failure  to  transmit  evidence  of  negligence,  §  275. 
error  in  transmission  evidence  of  negligence,  §  276. 
what  if   there  is  a  stipulation  against  liability  unless  message 

repeated,  §§277,  278,  279. 
what  circumstances  afford  evidence  of  gross  negligence.  §  280. 
evidentiary  circumstances   rebutting  such  a  prima  facie   case, 

§  281. 
burden  of  proof  as  to  free  delivery  limits,  §  282. 
evidence  of  negligence  in  cases  of  non-delivery  of  message,  §§  286- 
292. 

in  failing  to  deliver  message,  when  disregarded,  §  2S6. 
telegraph  company  must  make  what  efforts  to  deliver  the  mes- 
sage, §  286. 
whether  diligence  in  delivering  a  question  of  law  or  of  fact, 

§287. 
cases  where  ruled  as  a  question  of  law,  §  288. 
delivery  to  other  person  tban  the  addressee,  §  289. 


504 


INDEX. 


NEGLIGENCE— Continued. 

delivery  where  the  message  is  addressed  to  one  person  in  care  of 

another,  §  290. 
plaintiff  not  bound  to  show  that  the  addressee  was  at  his  office 

ready  to  receive  the  message,  §  291. 
what  evidence  relevant  on  this  question,  §  292. 
evidence  of  negligence  in  cases  of  delay.  §§  295-304. 
general  view  as  to  liability  for  delay.  §  295. 
rule  as  to  urgent  messages,  §  296. 
what  disclosure  of  urgency  sufficient,  §  297. 
what  delay  evidence  of  negligence,  §  298. 
reception  at  a  small  station  and  transmission  through  repeating 

offices,  §  299. 
question,  how  affected  by  the  hours  of  closing  company's  office, 

§  300. 
what  excuses  insufficient,  §  301. 
whether  plaintiff  injured  by  the  delay  a  question  for  the  jury, 

§  302. 
no  recovery  of  damages  unless  delay  prejudicial.  §  303. 
delay  by  changing  route  in  consequence  of  bad  weather,  §  304. 

NEW  HAMPSHIRE, 

statute  of,  committing  regulation  of  electrical  companies  to  mu- 
nicipal corporations,  §  56. 

statute  of.  authorizing  use  of  roads  and  streets  by  these  companies. 
§  59. 

NEW  JERSEY, 

statute   of,  committing  regulation  of  electrical  companies  to  mu- 
nicipal corporations,  $  56. 
NEW  YORK. 

as  to  the  New  York  board  of  electrical  control.  >i  51. 

NOMINAL  DAMAGES, 

only  nominal  damages  recovered  in  case  of  failure  to  transmit  dis- 
patches relating  to  speculative  transactions.  §  345. 

NON-DELIVERY, 

telegraph   company   must   make   what   efforts  to  deliver  message. 

§  2S6. 
negligence  in  delivering,  whether  a  question  of  law  or  fact,  §  2S7. 

cases  where  ruled  as  a  question  of  law,  $  288. 
delivery  to  other  persons  than  the  addressee,  §  289. 
where  the  message  is  addressed  to  one  person  in  care  of  another. 

?  290. 
plaintiff  not  bound  to  show   that  the   addressee  was  at  his  office 

ready  to  receive  the  message,  §  291. 
what  evidence  relevant  on  this  question,  §  292. 


INDEX.  505 

NON-DELIVERY— Continued. 

damages  in  case  of  non-delivery  of  message  asking  for  information, 
§321. 

damages  for  non-delivery  of  message  requesting  postponement  of  a 
judicial  trial,  §  323. 

loss  of  profits  in  case  of  non -delivery  of  message  ordering  affirma- 
tive action — damages,  §  339. 

non-delivery  gives  right  of  action  to  addressee  under  American 
rule,  §  426. 

"NON-FEASANCE, 

distinctions  between  non-feasance  and  misfeasance  in  respect  of 
contribution  for  damages  for  negligence,  §  81. 

NOTICE, 

to  company,  of  wire  obstructing  highway,  §  78. 

proof  of   knowledge  of  regulation  limiting  liability  of  telegraph 

company,  §  206. 
exceptional  view  that  actual  notice  of  stipulation  in  message  blank 

must  be  brought  home  to  the  sender,  §  210. 
of  claim  for  damages,  stipulations  as  to  the  time  and  manner  of 

giving,  §§  245-256. 
of  claim  for  damages  must  be  delivered  to  an  authorized  agent, 

§  254. 

what  not  a  waiver  of  such  a  notice,  §  253. 

commencement  of  suit  equivalent  to  a  notice  in  writing  of  claim  for 
damages,  §  256. 

of  urgency  of  telegraph  message,  §  277. 

sufficient  to  put  a  reasonable  person  on  inquiry,  §  277. 

necessity  of  communicating  special  circumstances  to  telegraph  com- 
pany in  order  to  charge  it  with  special  damages,  §§  311,313  et  seq. 

agents  to  receive  dispatches  are  agents  to  receive  such  information, 
§  315. 

effect  of  extrinsic  information  of  the  importance  of  the  message, 
§364. 

effect  of  oral  information,  §  364. 

sufficient  that  the  company  i«  put  upon  inquiry,  §  365. 

effect  of  previous  transactions  as  disclosing  the  importance  of  the 
message,  §  365. 

general  information  sufficient,  §  366. 

instances  of  dispatches  sufficiently  disclosing  the  nature  and  im- 
portance of  the  transaction,  §§  367,  368. 

evidentiary  facts  showing  that  the  agent  has  information  of  the 
nature  of  the  message,  §  375. 

necessity  of  apprising  company  of  special  circumstances  giving  rise 
to  damages  consisting  of  mental  suffering,  §§  386,  3S7. 

notice  of  special  circumstances  requiring  urge  cy  necessary  to  re- 
covery of  exemplary  damages,  §  398. 


506 


[NDEX. 


NOTICE— Continued. 

when  party  not  bound  to  notify  telegraph  company  of   its   error, 

§  413. 
importance  of  telegraph  company  having  notice  in  case  of  agency, 

§  430. 
immateriality  of  the  fact  that  the  company  had  no  notice  that  the 

addressee  was  the  plaintiffs  wife,  §  443. 
of  injunction,  may  be  communicated  by  telegram,  §  508. 

such  notice,  how  communicated  under  English  practice,  §  509. 
duty  of  sheriff's  officer  respecting  same,  §  509. 

NOTICE  TO  PRODUCE, 

when  parol  evidence  of  contents  of  telegraph  message  competent 
without  notice  to  produce,  §  506. 

NUISANCE, 

when  telegraph  poles  in  streets  a  public  nuisance,  §  28. 

power  of  municipal  corporations  to  abate,  §  29. 

liability  for  not  exercising  this  power,  §  29. 

reasonableness  of  regulation  designating  streets  to  be  occupied  by 

electrical  companies,  §  30. 
power  of  cities  to  remove  electrical  poles  as  nuisances,  §  31. 

OFFER, 

damages  for  delay  of  message  accepting  offer  of  sale,  §  343. 
by  telegraph,  when  deemed  to  have  been  accepted,  §  477. 

OFFICE  HOURS, 

question  of  diligence  in  transmitting  message,  how   affected   by 

hours  of  closing  office,  §  300. 
OHIO, 

statute    restraining    invasions  of  private   property    by    electrical 

companies,  §  58. 
statute  of,  authorizing  use  of  roads  and  streets  by  these  companies, 

,<  59. 

OPERATOR, 

authority  of,  to  receive  notice  of  claim  for  damages,  §  254. 
OPTIONS, 

delay  in  transmitting  message  accepting  option,  §  344. 

loss  of  profits  on  options,  §  349. 

no  damages  against  telegraph  companies  for  loss  of  profits  under 
illegal  option  deals,  §  353. 
ORAL  MESSAGE, 

telegraph  company  not  bound  to  transmit,  §  153. 

whether  subject  to  stipulation  as  to  repeating,  §  239. 
ORDINARY  CARE, 

failure  to  use,  excused  by  stipulation  for  repeating  telegraph  mes- 
sage, §  224. 


INDEX.  507 

ORDINARY  NEGLIGENCE, 

excused  by  stipulation  for  repeating  telegraph  message,  but  not 
gross  negligence,  §  223. 

ORIGINAL, 

whether  dispatch  sent  or  dispatch  received  is  the  original,  §  497. 

OTHER  EVIDENCE, 

Arkansas  rule  imposing  upon  plaintiff  the  necessity  of  showing  neg- 
ligence by  other  evidence  than  the  mere  failure  to  deliver 
commented  on,  §  163. 

OTHER  POLES, 

evidence  as  to  condition  of,  in  actions  for  negligence,  §  85. 
OTHERS, 

evidence  of  others  passing  in  safety  in  actions  for  negligence,  §  85. 
PARTIALITY, 

statutes  giving  penalties  against  telegraph  companies  for  partiality 

in  discharging  their  public  duties,  §  157,  et  sej. 
Missouri  statute  giving  penalty  against  telegraph   companies  for 
partiality,  etc.,  §  160. 

PARTIES  TO  ACTIONS, 

English  rule  that  sender  only  can  sue,  §  422. 

even  in  a  case  of  malfeasance,  §  423. 

unsoundness  and  injustice  of  the  English  rule,  §  424. 

exception  where  the  sender  is  agent  of  addressee,  §  425. 
American  rule:  action  by  addressee  for  non-delivery,  §  426. 
view  which  sustains  the  right  of  action  in  the  addressee,  §  427. 
action  by  addressee  for  mistake,  §  428. 

illustration  of  these  views,  §  429. 
when  the  addressee  must  sue  in  tort,  §  430. 

where  the  sender  is  agent  of  a  third  person,  principal  may  sue,  § 
431. 

although  he  be  an  undisclosed  principal,  §  432. 

so,  where  sender  is  the  agent  of  the  addressee,  §  433. 
broker  transmitting  message  for  principal  and  suing  in  his  own 

name,  §  434. 
stranger  to  both  sender  and  addressee,  §  435. 
importance  of  the  defendant  having  notice  of  the  agency,  $  436. 
action  over  by  sender  for  damages  sustained  by  receiver  and  re- 
covered from  the  company,  §  437. 
under  Indiana  statutes  giving  penalties,  §  438. 
under  Indiana  statute  giving  special  damages,  §  439. 
under  Missouri  statute  giving  special  damages,  §  440. 
under  Mississippi  statute  giving  penalty,  §  441 . 
in  case  of  refusal  of  connecting  line  to  forward,  «*  412. 
husband  suing  for  wife:  Texas  code,  §  1 13. 


508  INDEX. 

PARTNERSHIP, 

none  between  connecting  lines  of  telegraph,  §  262. 

PASSENGER, 

negligence  of  driver  not  imputable  to  passenger,  §  74. 

PATENT  DEFECTS, 

servant  injured  through,  master  not  liable,  §  90. 
PATENTS  FOR  INVENTIONS, 

exclusive  privileges  to  telegraph  companies  under  United   States 

statute,  §  10. 
municipal  corporation  no  power  to  infringe  patent  right,  §  53. 
history  of  the  telephone  patents,  §  102. 

PAYMENT, 

payment  or  tender  of  charges  must  be  alleged,  etc.,  §  449. 
PENALTY, 

against  telegraph  companies  for  neglecting  or  refusing  to  transmit 
government  dispatches,  §  2,  p.  5. 

attempted  evasions  of  statutory  penalties  against  excessive  tele- 
phone charges,  §  118. 

attempted  evasions  of  statutory  penalties  against  discrimination  by 
telephone  companies,  §  118. 

general  obligations  to  transmit  messages  in  the  order  in  which  they 
are  received,  §  157. 

statutes  enforcing  this  obligation,  §  15S. 

Indiana  statute  giving  penalty  for  bad  faith,  partiality,  or  discrim- 
ination, §  159. 

Missouri  statute  giving  a  penalty,  §  1G0. 

not  liquidated  damages  but  a  penalty,  §  161. 

jury  how  instructed  as  to  statutory  obligation  to  transmit  messages 
in  the  order  in  which  they  are  received,  §  1G2. 

Arkansas  statute  giving  penalty,  §  163. 

how  far  statutes  apply  to  interstate  messages,  §  164. 

validity  of  statute  imposing  a  penalty  where  dispatch  is  sent  to 
another  State,  §  165. 

no  action  for  penalty  for  non-delivery  of  message  delivered  to  be 
sent  on  Sunday,  §  166. 

exception  where  the  dispatch  relates  to  a  work  of  necessity,  §  167. 

burden  of  proof  as  to  necessity,  §  168. 

exception  in  cases  of  necessity  or  charity,  §  J69. 

the  necessity  may  be  a  moral  necessity,  §  170. 

the  necessity  may  be  created  by  negligence,  §  171. 

retention  of  the  money  not  a  ratification  by  telegraph  company, 
><  172. 

no  penalty  for  refusing  to  transmit  obscene  messages,  §  173. 

penalty  for  refusing  dispatches  of  competing  lines.  §  174. 

when  notice  to  the  company  necessary,  j  175". 


IXDEX.  509 

PENALTY— Continued. 

when  payment  of  actual  damages  no  bar  to  recovery  of  penalty,  § 

176. 
action  for  penalty  by  addressee,  §  177. 
jurisdiction  of  such  actions :  justices  of  the  peace,  §  17S. 
whether  stipulation  as  to  time  for  presenting  claim  for  damages 

applicable  to  a  statutory  penalty,  §  251. 
for  refusing  to  receive  dispatches  from  connecting  lines,  §  261. 
parties  to  actions  under  Indiana  statute  giving  penalties,  §  43S. 

under  Mississippi  statute  given  penalty,  §  441. 
statutes  giving  penalties  strictly  construed  and  pursued,  §  450. 
allegations  of  the  complaint  under  such  a  statute,  §  450. 

where  the  plaintiff  alleges  that  the  contract  was  made  on  Sun- 
day, must  also  allege  necessity,  etc.,  §  450. 
uniting  action  for  statutory  penalty  with  claim  for  damages,   §  454. 
not  necessary  to  aver  damages  iu  action  to  recover,  §  460. 

PENNSYLVANIA, 

statute  of,  committing  regulation  of  electrical  companies  to  munie- 
•  ipal  corporations,  §  56. 

PERSONAL  PROPERTY, 

telegraph  wires  are  personal  property,  §  515. 
PETITION, 

requisites  of  petition  to  condemn  laud  for  telegraph  companies,  etc., 
§23. 
PHYSICIAN, 

damages  for  mental  suffering  through  failure  to  deliver  a  telegram 
calling  a  physician  in  a  case  of  confinement,  §  389. 

what  if  the  doctor  could  not  have  reached   the  patient  in   any 

event,  §  391. 
damages  where  the  doctor  got  there,  but  where  the  husband 
did  not,  §  392. 
PLACE, 

from  which  message  sent  not  included  iu  stipulation  as   to  repeat- 
ing, §  240. 

PLEADING, 

requisites  of  petition  to  condemn  land  for  telegraph  companies. 

etc..  §  23. 
form  of  action  :  contract  or  tort,  §  448. 
what  the  plaintiff  must  aver  and  prove,  §  449. 
under  the  Indiana  statute  giving  a  penalty,  §  450. 

examples  of  good  declarations  or  complaints,  §  !•">! . 

another  example,  §  452. 

example  of  a  petition  bad  because  damages  too  remote,  §  453. 
uniting  claim  for  statutory  penalty  with  claim  for  damages,  §  151. 
allegata  <  t  probata,  §  155. 


510  INDEX. 

POLES, 

statutes  and   municipal  regulations  authorizing  the  stringing  of 

wires  on  existing  poles,  §  57. 
erected  in  part  of  street  prohibited  to  travel — negligence — liability, 

§  75. 
erected  in  improper  location — negligence — liability,  §  77. 
runaway  horse  colliding  with — negligence — liability,  §  77. 
injuries  from  poles  blown  down  by  storms,  §  80. 

POLES  AND  WIRES, 

statutory  protection  of,  against  malicious  injury,  §  13. 
POLICE  POWER, 

of  the  State  over  telegraph  companies,  §  1. 
POLICE  REGULATIONS, 

telephone  companies  subject  to  public  regulation,  §  104. 
although  using  L'nited  States  patents,  §  105. 

POST-ROADS, 

telegraph  companies  may  operate  lines  upon,  §  2,  p.  4.  « 

right  of  congress  to  regulate  not  interfered  with  by  the  State  statute 
compelling  telegraph  wires  to  go  under  ground,  §  47. 

POSTAL  TELEGRAPHS, 

non-liability  of  English  postmaster-general  for  damages  incurred 
in  operating  postal  telegraph,  §  69. 

POSTMASTER-GENERAL, 

makes  rates  for  government  telegraphic  business,  §  2,  p.  5. 
telegraph  companies  to  file  acceptance  of  acts  of  congress  with.  §  2. 

p.  5. 
operating  postal  telegraph,  not  liable  to  damages,  §  69. 
POWER  OF  ATTORNEY, 

regulation  requiring  power  of  attorney  from  sender  of  message, 
etc..  unreasonable,  §  265. 

PRACTICE, 

service  of  process  on  such  companies,  §§469,470. 
immaterial  special  findings,  §  471. 

PRESCRIPTION, 

prescriptive  right  to  plant  poles  and  string  wires,  §  13. 
PRESUMPTION, 

that  message  as  delivered  to  telegraph  company  was  delivered  to 
addressee,  §§  499,  500. 

that  telegraph  line  extends  beyond  the  limits  of  the  State  in  con- 
nection with  special  taxation,  §  520. 


INDEX.  511 

PKIMAEY  AND  SECONDARY  EVIDENCE, 

parol  evidence  of  contents  of  claim  of  indemnity,  §  463. 

admissibility  of  copies  of  telegraph  messages,  §  464. 

whether  the  dispatch  sent  or  trie  dispatch  received  is  the  original, 

§§  496,  497. 
under  what  circumstances  copy  of  telegram  admissible,  §§  502,  503. 
when  oral  evidence  admissible,  §  504. 
when  secondary  evidence  admissible,  §  505. 
when  parol  evidence  competent  without  notice  to  produce,  §  506. 

PRIMA  FACIE  EVIDENCE  OF  NEGLIGENCE.    See  Negligence. 

PRIORITY, 

government  to  bave  priority   in  transmission  of  messagss,  §  2,  p.  4. 
of  telegraph    messages — invalidity   of     State   statutes  prescribing 

priority  of  interstate  messages,  §  5. 
of  the  occupancy  of  streets  by  electrical   companies,  how  far  gives 

priority  of  right,  §  39. 

PRIVATE  INTERNATIONAL  LAW. 

•filer  by  telegram  in  one  State  and  acceptance  in  another,  §  478. 

PRIVILEGED   COMMUNICATIONS, 

telegraphic  messages,  how  far  privileged — how  far  not,  §  493. 

PROCESS, 

service  of  process  on  telegraph  companies,  §§  469,  470. 
PROFESSIONAL  MEN, 

damages  for  loss  of  fees  by,  in  actions  against  telegraph  companies, 
§  325. 

PROFITS, 

loss  of  profits  as  an  element  of  damages  in  actions  against  telegraph 
companies,  §  311. 

damages  for  loss  of  fees  by  professional  men,  §  325. 

damages  for  loss  of  chance  of  obtaining  employment.  §  326. 
under  the  Indiana  statute,  §  327. 
under  the  Nebraska  statute,  §  32S. 

damages  for  mistakes  in  transmitting  messages  ordering  sales  or 
making  or  directing  purchases,  §  335. 

loss  of  profits  in  consequence  of  errors  in  messages  ordering  affirm- 
ative action,  §  339. 

loss  of  profits,  to  be  recoverable,  must  be  certain,  and   not   contin- 
gent merely,  §§  346-352. 

PROMPT  DELIVERY, 

the  essence  of  the  business  of  telegraphing,  §  295. 
PROTECTION, 

statutory  protection  of  poles  and  wires,  §  13. 


512  INDEX. 

PROXIMATE   AND   REMOTE  CAUSE, 

telegraph  company  not  liable  for  remote  frauds  following  negli- 
gence of  its  agent,  §  148. 

only  direct  and  proximate  damages  recoverable  against  telegraph 
companies,  §  318. 

rule  where  default  of  company  is  made  injurious  by  an  intervening 
cause,  §  319. 

intervening  fraud  of  a  third  person,  §  320. 

instances  of  damages  in  actions  against  telegraph  companies  which 
have  been  held  too  remote,  §  324. 

loss  of  uncertain  and  contingent  profits  not  recoverable,  §  346. 

instance  of  a  demurrible  petition  because  damages  too  remote,  § 
453. 

proximate  cause  of  loss  by  connecting  lines,  ^  2G7. 

proximate  cause  means  probable  cause — discussion,  §  346. 

PUBLIC  AGENCIES, 

telephones  are,  and  subject  to  public  regulation,  §  104  et  seq. 
telegraph  companies  are,  §  136  et  seq. 

bound  to  transmit  all  lawful  messages  tendered,  §  143. 

and  under  reasonable  regulations,  §  144. 

but  not  bound  to  transmit  unlawful   messages,  §  145. 

liable  for  transmitting  forged  messages,  §§  146,  147. 

PUBLIC  DUTY, 

of  telegraph  company  supports  American  theory  of  right  of  action 
in  addressee,  §  427. 

PUBLIC  NUISANCE.    See  Nuisance. 

PUBLIC  REGULATION.    See  Telephone  Companies. 

PUBLIC  USE. 

telegraphs  and  telephones  are  a  public  use,  §  17. 
PUBLICATION, 

transmission  of  libelous  message  to  the  associated  press,  is  a,  §  150. 

PURCHASE.    See  Sales,  §§  335,  336,  337,  339,  341. 

mistakes  in  messages  ordering  broker  to  buy  or  sell,  §  337. 

QUESTIONS  OF  LAW  AND  FACT.    See  Law  and  Fac  t. 
RAILROADS, 

declared  by  acts  of  congress  to  be  post-roads,  §  3. 

whether  telegraph  lines  on  railroad's  right  of  way  an  additional 

servitude,  §  18. 
right  of  railway  company  to  compensation  from  telegraph  company 

for  using  its  right  of  way,  §  20. 
construction  of  statute  as  to  power  to  pass  telegraph  line  under  a 
railroad.  §  21. 
RATIFICATION, 

by  municipal  corporation,  of  license  to  telephone  company,  §  36. 


INDEX.  513 

REAL  PROPERTY, 

electric  light  plant  classed  as  real  property,  §  504. 
REASONABLE  CARE, 

is  a  care  proportionate  to  the  danger  of  mischief,  §  66. 

in  forwarding  urgent  messages,  §  296.    See  also  Negligence. 

REASONABLE  DILIGENCE, 

in  forwarding  urgent  messages,  §  296. 
REASONABLE  TIME, 

for  presenting  claims  for  damages,  §§  245-256. 

doctrine  that  reasonable  time  must  be  left  after  knowledge  of 
loss.  §  255. 

REASONABLENESS, 

of  license  for  use  of  city  streets,  §  47. 

of  stipulations  in  message  blanks  requiring  message  to  be  repeated, 

§§  217-241. 
rule  as  to  repeating  which  excuses  company  from  failure  to  deliver 

reasonable,  §  22S. 
of  particular  regulations  as  to  connecting  lines,  §  265. 
of  office  hours  of  telegraph  company,  §  300. 

RECEIVER, 

of  telegraph  message  under  no  obligation  to  have  it  repeated,  §  237. 

not  contributory  negligence  for  receiver  of  message  to  omit  repeat- 
ing, §  237. 

of  message,  not  bound  by  stipulation  as  to  time  for  presenting  claim 
for  damages,  §  251. 

REFUSAL, 

to  pay,  is  a  waiver  of  a  written  notice  of  a  claim  for  damages,  §  253. 

REGULATIONS, 

statutory  and  municipal  of  electric  wires,  §§  49,  50. 

of  telephone  company  against  use  of  instrument  by  rival  company 
§119. 

as  to  improper  language,  §  120. 

telegraph  companies  bound  to  serve  the  public  under  reasonable 
regulations,  §  144. 

reasonableness  of  regulations  of  telegraph  companies  as  to  connect- 
ing lines,  §  265.    See  Stipulations. 

RELEASE, 

of  damages  for  appropriation    of  land  by    acquiescence   of    land 
owner,  §  24. 
RELEVANCY, 

of  telegraph  dispatches  as  evidence,  §  492. 
delivery  of  message  not  proved  by  producing  reply,  §  501. 

(33) 


514  INDEX. 

REMOTE  CAUSE, 

means  improbable  cause — discussion,  §  340. 
REPEATING, 

reasonableness  of  regulation  requiring  telegraph   message  to  be  re- 
peated, §  217. 
such  regulation  does  not  excuse  negligence  or  other  fault,  §  218. 
exempts  only  from  risks  beyond  control,  §  210. 
incongruity  of  this  rule  suggested,  j  220. 
effect  of  this  rule  on  burden  of  proof  and  evidence,  §  221. 
comments  on  these  opposing  views,  §  222. 
such  stipulation  excuses  mistakes  not  arising  from  gross  negligence, 
§223. 
this  view  as  understood  in  Massachusetts,  j  224. 
further  of  the  Massachusetts  doctrine,  §  225. 
the  same  view  taken  in  New  York,  §  22(5. 
this  rule  as  understood  in  Kentucky,  §  227. 
view  that  such  stipulations  exonerate  only  from  liability  for  errors 
preventable  by  repeating,  §  228. 

illustrations  of  this  view.  §§  220,  230. 
cases  of  exoneration  under  this  rule,  §§  231.  232. 
such  stipulations  release  liability"  for  mistakes  of  connecting  lines,  § 
233. 

but  do  not  exonerate  the  connecting  lines   themselves,  §  234. 
simpler  view  that  such  stipulations  are  void,  §  235. 

reasons  given  for  this  view,  §  236. 
receiver  of  message  under  no  obligation  to  have   it   repeated,  §  237. 
what  amounts  to  a  request  to  have  message  repeated,  §  238. 
waiver  of  stipulation  as  to  repeating  a  question  for  a  jury,  §  239. 
such  stipulations  apply  only  to  the  body  of  the  message — not  to  its 

date,  §  240. 
considerations  showing  that  stipulations  as  to   repeating  are  a  mere 

sham,  §  241. 
stipulation  against  liability  unless  message  repeated,    how  affects 
evidence  of  negligence  and  burden  of  proof,  §§  277,  27S,  279. 

REPEATING   OFFICE, 

non-delivery  in  consequence   of  destruction  of  repeating  office  by 

fire,  §  2S1. 
company  entitled  to  reasonable  time  for  delay  at  repeating  office, 

§  299. 
reception   of  telegraph  messages   at  small  station  and  transmission 

through  repeating  office — diligence — negligence,  §  299. 

REPLY, 

to  telegraph  message   not  evidence  of  contents  of  a  message  sent. 
§  501. 

REQUEST, 

what  amounts  to  a  request  to  have  a  telegram  repeated,  §  238. 


INDEX.  515 

RETURN  CIRCUIT, 

no  injunction  against  use   of  the  earth  for  a  return  circuit,  §  44. 

RHODE  ISLAND, 

statute  of,  committing  regulation  of  electrical  companies  to  munic- 
ipal corporations,  §  56. 

statute  restraining  invasions  of  private  property  by  these  com- 
panies, §  5S. 

RIGHT  OF  WAY, 

whether  construction  of  telegraph  line  on  right  of  way  of  railroad 
company  an  additional  servitude  on  the  fee,  §  19. 

right  of  railway  company  to  compensation  in  such  cases,  §  20. 

RIVAL  COMPANIES, 

validity  of  regulations  against  use  of  instrument  by  rival  company, 
§  119. 

ROADS.    See  Highways. 
RULES, 

proof  of  knowledge  of  rules  of  telegraph  company  on  the  part  of 

customer,  §  206. 
customer  of  telegraph  company  bound  to  know  its  rules,  §  211. 

unsoundness  of  this  view  suggested,  §  212. 
sender  bound  by  rules  of  whose  existence  he  has  knowledge,  §  213. 
of  telegraph  company  do  not  excuse  its  own  negligence,  §  296. 

RUNAWAY  HORSES, 

electrical  trains  frightening  horses — negligence — liability,  §  S4. 
collision  between  runaway  horse  and  telegraph  pole — negligence — 
liability,  §  77. 

SAGGING, 

interferences  among  electrical  wires  by  sagging,  §  50,  p.  68. 
injuries  to  workmen  by  "live"'   wires  sagging  upon  "•dead"  wires, 
§  93. 

SALES, 

damages  for  mistakes  in  transmitting  messages  ordering  sales  or 

making  or  directing  purchases,  §  335. 
damages  for  delay  of  message  accepting  offer  of  sale,  §  343. 
in  case  of  mistake  in  delivering  message,  right  to  sell,  and  charge 

telegraph  company  with  difference,  §  414. 

SECONDARY  EVIDENCE, 

of  contents  of  telegrams,  §  466. 

SECRECY, 

of  telegraph  messages,  §  493. 
statutory  protection  of  the  .same,  j  194. 


516  INDEX. 

SENDER  OF  MESSAGE, 

financial  condition  of,  as  au  element  of  damage,  §  399. 

English  rule  that  sender  alone  can  sue,  §  422  etseq.;  see  Parties. 

SERVICE  OF  PROCESS, 

within  the  time  limited  for  presenting  a  claim  for  damages  is  tanta- 
mount to  a  claim,  §  256. 

SERVITUDE, 

whether  telegraph  line  on  highway  an  additional  servitude,  §  18. 
whether  telegraph  lines  on  railroad's  right   of  way  an   additional 

servitude,  §  IS. 
additional  burdens  on  the  fee  by  electrical  companies,  §  22. 

SEVEN  DAYS, 

limitation  of,  as  the  time  for  presenting  claim  for   damages   held 

valid,  §  248. 
message  mislaid  for  seven  days — gross  negligence,  §  298. 

SHAM, 

stipulations  as  to  repeating  messages  a  mere  sham,  §  241. 

SHUNT- CORD, 

injury  to  servant  through  use  of  defective  shunt-cord — when  no  lia- 
bility, §  91. 

SIX  HOURS, 

delay   in  delivering  message  announcing  funeral  not  prejudicial, 
etc.,  §  303. 

SIXTY  DAYS, 

not  an  unreasonable  limitation  for  presenting  claims  for  damages, 
§247. 
validity  of  a  limitation  of  less  thaa  sixty  days,  §  24S. 
circumstances  under  which  such  limitation  too  short,  §  249. 

SLEET, 

escape  of  electrical  currents  during  storms  of  sleet,  §  50,  p.  70. 

SMALL  STATION, 

reception  of  telegraph  messages  at  small  station  and  transmission 
through  repeating  offices — diligence — negligence,  §  299. 

SMALL  TYPE, 

stipulations  in  message  blanks  printed  in,  effect  of,  §  208. 

SOUTH  CAROLINA, 

statutes  of,  punishing  malicious  trespasses  upon  poles  and  wires, 
§  13,  p.  15. 

SPECIAL  DAMAGES, 

must  be  alleged  and  proved,  §  402. 


INDEX.  517 

SPECIAL  DAMAGES— Continued. 

parties  to  actions  under  Indiana  statute  giving  special  dajnages,  § 
439. 
under  Missouri  statute  giving  special  damages,  §  440. 

SPECIAL  FINDINGS, 

immaterial  special  findings  in  actions  against  telegraph  companies, 
§471. 

SPECULATION, 

rule  of  damages  against  telegraph  companies  for  failing  to  transmit 
dispatches  in  regard  to  speculative  enterprises,  §  345. 

STATE  REGULATIONS.     See  Telephone  Companies. 
STATUTE  OF  FRAUDS, 

telegram  a  good  memorandum  under,  §  476. 

STATUTES, 

provisions  of  the  revised  statutes  of  the  United  States  relating  to 
telegraph  companies,  §  2. 
validity  and  effect  of  this  statute  in  general,  §  3. 
effect  of  this  statute   in   exempting  telegraph   companies  from 
State  taxation  and  control,  §  4. 
statutes  of  various  States  protecting  poles  and  wires,  §  13. 
recent  statutes  regulating  electrical  companies,  §  54-59. 

authorizing  the  laying  of  their  wires  under  ground,  §  55. 
committing  their  regulation  to  municipal  corporations,  §  56. 
authorizing  the  stringing  of  their  wires  on   existing  poles,  §  57. 
restraining  invasions  of  private  property,  §  58. 
authorizing  the  use  of  railroads  and  streets   by   telegraph  and 
telephone  companies,  §  59. 
creating  penalties  against  telegraph  companies,  §  179. 
granting  power  to  telegraph  company  to  pass  under  railway,  §   21. 
invalidity  of  State  statutes  prescribing  priority  of  interstate   mes- 
sages, §  5. 
interstate  business  not  subject  to  State  taxation,  §  6. 

ST.  LOUIS, 

municipal   regulation  authorizing   stringing  of  wires   on   existing 

poles,  §  57,  p.  86. 
regulation  of  board  of  public  improvements  concerning  the   same 

subject.  §  ."37.  p.  87. 
no  power  to  regulate  telephone  charges,  §  116. 

STIPULATIONS  AND  REGULATIONS, 

cannot  limit  liability  for  gross  negligence,  §  183. 
a  comprehensive  statement  of  the  doctrine,  §  184. 
such  regulations  must  be  reasonable,  §  185. 

view  that  they  can  stipulate  against  liability  except  for  gross  negli- 
gence or  willful  misconduct,  §  186. 


518  INDEX. 

STIPULATIONS  AND  REGULATIONS— Continued, 
evidence  of  gross  negligence  within  this  rule,  §  187. 
cannot  limit  liability  for  negligent  mistakes,  defective  instruments 

etc.,  §  190. 
cannot  stipulate  against  liability  for  simple  negligence,  §  188, 
reason  of  this  rule,  §  1S9. 

may  stipulate  against  liability  for  mistakes  due  to   climatic  in- 
fluences, §  191. 
cannot  stipulate  against  statutory  penalty,  §  192. 
unreasonableness  of  condition  limiting  liability  to  the  cost  paid  for 

transmission,  §  193. 
stamping  messages  "accepted  subject  to  delay,"  §  194. 
view  that  such  stipulations  do  not  exempt  from  liability  to  the  re- 
ceiver of  the  message,  §  195. 
reasonableness  of  a  regulation  requiring  deposit  to  pay  for  answer, 

§  196. 
reasonableness  of  a  regulation  requiring  deposit  to  pay  for  charges 

of  delivery,  §  197. 
evidence  of  local  usage  inadmissible  to  vary  the  contract,  §  198. 
reasonableness  of  regulation,  when  a  question  of  law  and   when  a 

question  of  fact,  §  199. 
instances  where  determined  as  a  question  of  law,  §  200. 
invalidity  of  stipulations  on  night  or  half-rate  messages  exonerating 

from  liability,  §  201. 
valid  except  in  cases  of  gross  negligence  or  fraud,  §  202. 
proof  of  knowledge  of  regulation,  §  206. 
stipulations  on  message  a  part  of  the  contract,  §  207. 
various  statements  of  the  rule,  §  208. 
illustrations,  §  209. 
exceptional  view  that   actual  notice  of    the  stipulation  must  be 

brought  home  to  the  sender,  §  210. 
view  that  customer  bound  to  know  rules  of  company,  §  211. 
unsoundness  of  this  view,  §  212. 
view  that  sender  is  bound  by  rules   of   whose  existence  he    has 

knowledge,  §  213. 
stipulations  as  to  repeating,  §§  217-237. 

reasonableness  of  regulation  requiring  messages  to  be  repeated, 

§217. 
does  nor  excuse  negligence  or  other  fault,  §  218. 
exempts  it  only  from  risks  beyond  its  control,  §  219. 
.   incongruity  of  this  rule,  §  220. 
effect  on  the  burden  of  proof  and  evidence,  §  221. 
comments  on  these  opposing  views,  §  222. 
excuses  mistakes  not  arising  from  gross  negligence,  §  223. 
this  view  as  understood  in  Massachusetts.  §  224. 
further  of  the  Massachusetts  doctrine,  §  225. 
the  same  view  taken  in  New  York,  §  226. 
this  rule  a?  understood  in  Kentucky,  §  227. 


INDEX. 


519 


STIPULATIONS  AND  REGULATIONS— Continued. 

view  that   condition   as  to   repeating    exonerates    only    from 

liability  for  errors  preventable  by  repeating,  §  228. 
illustrations  of  this  view,  §  229,  230. 
cases  of  exoneration  under  this  rule,  §§  231,  232. 
releases  liability  for  mistakes  of  connecting  line,  §  233. 
but  does  not  exonerate  connecting  line,  §  234. 
simpler  view  that  such  stipulations  are  void,  §  235. 
reasons  given  for  this  view,  §  236. 
receiver  of  message  under  no  obligation  to  have  it  repeated, 

§  237. 
what  amounts  to  a  request  to  have  the  message  repeated,  §  238. 
waiver  of  such  stipulation  a  question  for  jury,  §  239. 
such  stipulations  apply  only  to  the  message— not  to  the  date, 

§240. 
consideration  showing  that  the  condition  as  to  repeating  is  a 
mere  sham,  §  241. 
stipulations  and  limitations  as  to  time  and  manner  of  presenting 
claims  for  damages,  §§  245-256. 

such  stipulations,  when  deemed  reasonable,  §  245. 
reason  of  the  rule,  §  246. 

limitation  of  sixty  days  not  unreasonable,  §  247. 
validity  of  limitations  of  less  than  sixty  days,  §  248. 
circumstances  under  which  such  limitations  too  short,  §  249. 
thirty  days'  limitation  with  knowledge  of  loss  sufficient,  §  250. 
whether  applicable  to  actions  for  statutory  penalties,  §  251. 
applies  only  in  cases  where  message  is  sent,  §  252. 
when  not  a  waiver  of  written  notice,  §  253. 
notice  must  be  delivered  to  authorized  agents,  §  254. 
when  limitation  begins  to  run,  §  255. 

commencement  of  suit  equivalent  to  notice  in  writing,  §  256. 
telegraph  company  may  stipulate  against  liability  for  defaults  of 

connecting  lines,  §  263. 
company  receiving  message  from  connecting  line  cannot  avail  itself 

of'conditions  in  the  message  blank,  §  268. 
against  liability  unless  message  repeated,  how  affects  evidence  of 

negligence  and  burden  of  proof,  §§  277,  278,  279. 
in  message  blanks,  as  to  cipher  or  obscure  messages,  §  370. 
as  to  repeating  in  the  case  of  cipher  dispatches,  §  371. 
effect  of  stipulation  in  message  blank  declaring  connecting  line  the 
agent  of  the  sender,  §  442. 

STORMS, 

escape  of  electrical  currents  in  consequence  of  storms,  §  50,  p.  70. 
injuries  from  poles  blown  down  by  storms,  §  SO. 

STRANGER, 

right  of  action  in  stranger  to  both  sender  and  addressee  of  message, 
when,  §  435. 


520  INDEX. 

STREETS.    See  Highways. 
SUBMARINE  CABLES, 

obstruction  of  navigation  by,  §  82. 

liability  of  owner  of  vessel  for  injuries  to,  §  S3. 

SUBPCENA  DUCES  TECUM, 

sufficiency  of  description  of  telegraph  message  in,  §  495. 
SUBWAYS, 

constitutionality  of  statutes  requiring  telegraph  wires  to  be  put 
under  ground,  §  32. 

statutes  authorizing  laying  of  electrical  wires  under  ground,  §  55. 
SUNDAY, 

where  the  plaintiff  alleges  that  the  contract  was  made  on  Sunday, 

must  also  allege  necessity,  etc.,  §  450. 
no  action  for  penalty  for  non-delivery  of  message  sent  on  Sunday, 

§166. 

TAXATION, 

limit  of  State  power  to  tax  telegraph  companies,  §  6. 
State  may  tax  the  property  of  such  companies,  §  6. 
may  not  tax  interstate  business,  §  6. 
may  not  tax  messages,  §  6. 
-  may  not  impose  a  general  license  tax,  §  7. 
tax  for  the  privilege  of  using  city  streets,  §  46. 
reasonableness  of  license  fee  for  such  use,  §  47. 
taxation  of  interstate  telephone  messages  by  States  void,  §  113. 
taxation  of  telephone  companies,  §§  126-130. 

1  of  stock  of  parent  company  in  local  company  §  127. 
license  taxes,  §  128. 
privileged  taxes,  §  129. 
statutory  schemes  of  taxation,  §  130. 
municipal  taxation  of   telegraph  companies  outside  of  city  limits, 

§  518. 
municipal  taxation   of  telegraph  companies  outside  of   city  limits 
void,  §  518. 

municipal  tax  not  exempting  government  business  void,  §  519. 
when  municipal  and  State  taxation  an  interference  with  interstate 
commerce,  §  520. 

TELEGRAMS.    See  Messages. 

TELEGRAPHS  AND  TELEGRAPH  COMPANIES, 

as  instruments  of  interstate  commerce,  §  1. 
provisions  of  the  revised  statutes  of  the  United  States,  §  2. 
validity  and  effect  of  this  statute  in  general,  §  3. 
effect  of  this  statute  in  exempting  telegraph  companies  from  State 
taxation  and  control.  §  4. 


INDEX.  521 

TELEGRAPHS  AND  TELEGRAPH  COMPANIES— Continued. 

invalidity  of  State  statutes  prescribing  priority  of  interstate  mes- 
sages, §  5. 

limit  of  State  power  of  taxation ;  property  taxable — interstate  busi- 
ness not,  §  6. 

license  tax  for  the  privilege  of  doing  business,  §  7. 

no  exclusive  privilege  of  establishing  line,  §  8. 

State  grant  of  exclusive  privilege  to  a  particular  company,  §  9. 

exclusive  privileges  under  United  States  patents,  §  10. 

right  to  extend  line  upon  interstate  bridge  over  navigable  waters,  § 
11. 

not  allowed  to  interfere  with  the  opening  of  the  draw-span,  §  12. 

statutory  protection  of  poles  and  wires,  §  13. 

damages  for  cutting  such  wires,  §  14. 

land  may  be  condemned  for,  §  17. 

whether  telegraph  lines  upon  highways  an  additional  servitude,  § 
18. 

how  as  to  lines  constructed  on  railroad  company's  right  of  way,  § 
19. 

right  of  railway  company  to  compensation  from  telegraph  company 
in  such  cases,  §  20. 

construction  of  a  statute  as  to  the  power  to  pass  under  a  railroad, 
§21. 

additional  burdens  on  the  fee  by  electrical  companies,  §  22. 

requisites  of  the  petition  to  condemn,  §  23. 

release  of  damages  by  acquiescence,  §  24. 

statutes  authorizing  use  of  roads  and   streets  by  telegraph  com- 
panies, §  59. 

telegraph  companies  entitled  to   equal  facilities   from  telephone 
companies,  §§  107,  109. 
contract  with  parent  company  no  defense,  §  107. 
a  contrary  view  in  Connecticut,  §  111. 

privileged  taxation  of — Indiana  statute,  §  129. 

statutes  relating  to,  embrace  telephone  companies,  §  101. 

how  far  telephone  differs  from,  §  100. 

public  nature  of  their  employment,  §  135. 

statutes  enforcing  their  public  obligations,  §  136. 

not  liable  as  common  carriers,  §  137. 

reasons  for  distinguishing  its  liability  from  that  of  a  common  car- 
rier, §  138. 

remote  analogy  to  the  undertaking  of  a  common  carrier,  §  139. 

liable  for  what  degree  of  care,  §  110. 

view  that  it  is  liable  for  a  high  degree  of  diligence,  skill  and  care, 
§141. 

whether  the  requisite  degree  of  care  was  employed  is  a  question  for 
the  jury,  §  142. 

bound  to  transmit  all  lawful  messages  tendered,  §  143. 

and  under  reasonable  regulations,  §  111. 


522  INDEX. 

TELEGRAPHS  AND  TELEGRAPH  COMPANIES— Continued. 

not  bound  to  transmit  messages  in  furtherance  of  unlawful  under- 
takings, §  145. 

liable  for  transmitting  forged  messages,  §  146. 

illustration  of  the  foregoing,  §  147. 

not  liable  for  fraud  happening  in  consequence  of  negligence  of  its 
agent,  §  148. 

not  liable  for  cashing  fictitious  money  order,  §  149. 

liable  for  transmitting  libelous  messages,  §  150. 

bound  to  transmit  messages  as  written,  §  151. 

not  liable  for  mistake  of  its  agent  in  correcting  erroneous  message, 
§  152. 

TELEGRAPH  POLES, 

when  deemed  a  public  nuisance  in  streets,  §  28. 
power  of  city  to  allow  erection  of,  in  streets,  §  29. 

to  desiguate  the  streets  to  be  occupied,  §  30. 

to  remove,  §  31. 

TELEGRAPH  SUBWAYS, 

constitutionality  of  statutes  requiring  telegraph  wires  to  be  put 
under  ground,  §  32. 

TELEGRAPH  WIRES, 

constitutionality  of  statutes  requiring  them  to  be  put  under  ground 

§32. 
municipal  control  as  to  mode  of  suspending  or  laying,  §  48. 
futility  of  attempts  at  statutory  regulation  suggested,  §  49. 
dangers  to  be  provided  against  by  such  regulations,  §  50. 
classed  as  personal  property,  §  515. 

TELEPHONE, 

judicially  described,  §  100. 
classed  with  telegraphs,  §  101. 
history  of  the  telephone  patents,  §  102. 

TELEPHONE  COMPANIES, 

mistakenly  pronounced  common  carriers,  §  103. 

are  public  agencies  and  subject  to  public  regulation,  §  104. 

although  using  United  States  patents,  §  105. 
compelled  by  mandamus  to  serve  the  public  equally,  §  106. 

although  under  a  contract  not  to  do  so  with  the  parent  com- 
pany, §  107. 
pleadings  in  actions  by  mandamus,  §  108. 
instances  of  responsive  answers  in  such  actions,  §  108. 
compelled  to  furnish  equal  facilities  to  telegraph  companies,  §§ 
109,  110. 
a  contrary  view,  §  111. 

what  if  company  have  lines  extending  into  other  States 
§112. 


INDEX.  523 

TELEPHONE  COMPAOIES— Continued. 

State  regulation  of  interstate  telephone  messages  void,  §  113. 
State  regulation  of  price  of  service,  §§  114,  115. 

under  Missouri  statute,  §  115. 
municipal  regulation  of  telephone  charges — St.  Louis,  §  116. 
decisions  under  Indiana  statute  as  to  telephone  regulation,  §  117. 
attempted  evasions  of  statutory  penalties,  §  118. 
regulation  against  use  of  instrument  by  rival  company,  §  119. 
regulation  as  to  improper  language,  §  120. 
telephonic  communications  as  evidence,  §  121. 

admissibility  of  conversations  received  through  a  telephone  oper- 
ator, §  122. 
rule  where  the  voice  of  the  speaker  is  recognized,  §  123. 
admissibility  of  answers  where  voice  not  recognized,  §  124. 

reasons  for  holding  such  testimony  admissible,  §  125. 
taxation  of  telephone  companies,  §§  126-130. 

taxation  of  stock  of  parent   corporation  in  local  corporation, 
§127. 

license  taxes,  §§  128,  129. 

privilege  taxes,  §  129. 

statutory  schemes  of  taxation,  §  130. 
telephone  companies  fall  under  statutory  regulations  of  telegraph 

companies,  §  101. 
statutes  authorizing  use  of  roads  and  streets,  by,  §  59. 

TELEPHONE  POLES, 

right  of  telephone  companies  to  erect  poles  in  the  streets  of  cities. 
§33. 
rights  of  abutting  property  owners,  §  34. 

company  liable  for   invading  private  property,  cutting  trees 
etc.,  §  35. 

TEXAS, 

statutes  of,  punishing  malicious  trespasses  upon  poles  and  wires,  § 

13,  p.  16. 
right  of  action  by  husband  under  Texas  code  for  damage  to  wife, 
§443. 
THREE  DAYS, 

delay  in  delivering  message  prima  facie  negligence,  §  298. 
THIRTY  DAYS, 

when  sufficient  limitation  for  presenting  claims  for  damages,  §  250. 
THIRTY  MINUTES, 

delivt  ry  of  message  in  thirty  minutes  after  reception  not  negligent, 
§  298. 
THROUGH  BUSINESS, 

leasing  of  a  telegraph  line  when  breach  of  a  contract  for  continuous 
business,  §  521. 


524  INDEX. 

TIME, 

allegation  of  delivery  of  message  for  transmission  in  March,  and 
proof  that  it  was  in  January,  §  453. 
TORT, 

whether  action  ex  contractu  or  ex  delicto  against  telegraph  company, 

§  146. 
wnen  the  addressee  of  a  message  must  sue  in  tort,  §§  430,  448. 
TOWER, 

injury  to   servant  through   breaking  of  elevator  of  electric  light 
tower — liability,  §  95. 
TRAVELER, 

contributory  negligence  by,  §  73. 

negligence  of  driver  not  imputable  to  passenger,  §  74. 
TREES, 

telephone  company  liable  for  cutting,  §  35. 
TRESPASS, 

telephone  company  liable  for  invading  private  property,  cutting 

trees,  etc.,  §  35. 
statutes  restraining  invasions  of  private   property  by  these  com- 
panies, §  58. 
how  far  electrical  companies  liable  on  principle  of  trespass,  §  67. 
TRIAL, 

damages  for  error  in  message  conveying  notice  of  date  of  trial  of  a 

cause,  §  322. 
damages  for  non-delivery  of  a  message  requesting  postponement  of 
a  judicial  trial,  §  323. 
TWENTY  DAYS, 

limitation  of,  for  presenting  claim  for  damages  held  valid,  §  248. 

ULTRA  VIRES, 

liability  for  damages  incurred  in  performance  of  ultra  vires  acts, 
§63. 
UNDISCLOSED  PRINCIPAL, 

right  of,  to  maintain  action  against  telegraph  company,  §  432. 
UNINTELLIGIBLE  DISPATCHES. 

rule  of  damages  in  case  of,  §  357  et  seq.    See  Cipher  Dispatches. 
UNITED  STATES, 

may  purchase  telegraph  lines,  §  2,  p.  4. 
UNLAWFUL  UNDERTAKINGS, 

telegraph  company  not  bound  to  transmit  messages  in  furtherance 
of,  §  145. 

URGENT  MESSAGES, 

rule  as  to  diligence  in  transmitting  and  delivering,  §  296. 
what  disclosure  of  urgency  sufficient,  §  297. 
what  delay  evidence  of  negligence,  §  29S. 


INDEX. 


525 


UTTERANCES, 

indicative  of  mental  suffering — admissibility,  §  460. 
VARIANCE.    See  Allegata  et  Probata. 
VERMONT, 

statutes  of,  punishing  malicious  trespasses  upon  poles  and  wires, 

§  13,  p.  16. 
statute  of,  committing  regulation  of  electrical  companies  to  mu- 
nicipal corporations,  §  56. 
statute  of,  authorizing  stringing  of  wires  on  existing  poles,  §  57. 
statute  of,  restraining  invasions  of  private  property  by  these  com- 
panies, §  58. 
VIRGINIA, 

statute  of,  authorizing  use  of  roads  and  streets  by  these  companies, 
§59. 
VOLUNTEER, 

no  damages  for  mistake  in  transmitting  dispatch  by  volunteer  quot- 
ing prices,  §  342. 
WAIVER, 

of  stipulation  for  repeating  telegram,  question  for  jury,  §  239. 

of  written  notice  of  claim  for  damages,  what  is  not,  §  253. 

when  oral  promise  of   agent  not  a  waiver  of  a  written  notice  of 

claim  for  damages,  §  253. 
refusal  to  pay,  a  waiver  of  a  written  notice  of  claim  for  damages, 

§253. 
of  payment  of  charges,  when  to  be  alleged,  §  449. 

WILLFUL  DEFAULT, 

telegraph  company  liable  for,  §  139. 
WILLFUL  MISCONDUCT, 

not  excused  by  stipulation  as  to  repeating  telegraph  message,  §  223. 
WIRES, 

injuries  from  overhanging  wires— negligence — liability,  §  78. 
injuries  from  guy  wires — negligence — liability,  §  79. 
injuries  to  workmen  by  "  live  "  wires  sagging  upon  "  dead  "  wires, 
§93. 
WISCONSIN, 

statutes  of,  punishing  malicious  trespasses  upon  poles  and  wires, 

§  13,  p.  16. 
recent  statutes  of,  regulating  electrical  companies,  §  54. 
damages  against   telegraph  companies  under   Wisconsin  statute, 
§401. 
WOULD  HAVE  DONE, 

what  a  speculator  would  have  done  in  the  way  of  buying  and  sell- 
ing if  he  had  received  correct  information,  not  an  element  of 
damages,  §§  347,  348,  372,  451. 


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